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A recent controversy

According to Regulations passed under the Equality Act 2006, discrimination on grounds of sexual orientation is generally prohibited when providing goods and services to the public. In January 2007 the Government made clear that it did not intend to allow an exception for Roman Catholic adoption agencies, which refuse to consider same-sex couples for fostering and adoption. So they must either abandon their moral position, or forfeit their right to provide the service. This dilemma is both surprising and unsettling. Social welfare services, like education, fall somewhere in the middle of the responsibilities of government, church and family. There is a long tradition of faith schools involving collaboration between all three institutions, and New Labour has embraced diversity here with enthusiasm. But in other areas of welfare provision, the Government has become intolerant of its social partners.

Apart from quiet capitulation, various Christian responses are possible. First, we could continue arguing on the basis of shared understandings of child welfare that the unwillingness to place children in such contexts is justified. Let’s call this an argument from the common good. Secondly, we could argue that judgements about the suitability of potential parents are really a matter for the church adoption agency, not for government, and that it is none of the Government’s business if the agency should form the view it does. Let’s call this an argument from institutional independence. Finally, and perhaps with a sense that this argument is a last resort, we could argue that Scripture and Christian tradition simply do not accept the notion of a homosexual ‘family’ and that, whatever other arguments might be brought to bear, refusal to countenance such a thing is a matter of conscience. So let’s call this an argument from conscientious witness.

The Catholic adoption agency fiasco is just one of several recent instances in which Christians seem to find themselves in a moral minority. Of course, some Christians have long been in that position on some matters, and there have always been other moral minorities as well, both religious and secular. Perhaps what is changing is that a considerable body of Christians now find themselves at odds with increasing aspects of law and public policy. What should we do about this?

Three arguments and natural law

In broad historical perspective, Christians have often sought to engage with problems of social and political morality on the basis of ‘natural law’. The term might seem strange today and is used to refer to a wide range of theories and phenomena. Natural law, for the purposes of this paper, is the thesis that law at its best is not just a human artefact, or a projection of political power, but an expression of a knowable moral reality. Arguments based on natural law have tended to arise in situations of fundamental conflict between worldviews: in the wake of the discovery of the New World, as a response to religious wars of the sixteenth and seventeenth centuries, as part of the Enlightenment critique of conventional political arrangements in late eighteenth-century America and France, and as a mid-twentieth-century response to communism and fascism.

In the twentieth century, natural law theory has been a major cause of theological division. In 1934, Karl Barth famously rebuked Emil Brunner with a resounding ‘no!’ to natural theology, natural reason and natural law. Barth argued that the effects of sin are so deep that there is no theology, reason or law outside of Christ. This critique was subsequently shared by many mainstream Protestant theologians, who rejected Catholic accounts of natural law as a static body of immutable principles, blind to historical circumstance and change.

The last couple of decades have seen a significant reappraisal from both sides of this argument.[2] After Vatican II, the commitment of Roman Catholics to an exclusive use of natural law theory has not been nearly as strong as it used to be.[3] More importantly, a number of Catholic moral theologians have re-articulated the tradition in the light of fresh readings of Thomas Aquinas to make it more flexible and responsive to current political arrangements.[4] From the Protestant side, historical theologians have questioned Barth’s reading of Calvinist thought and have shown that there is an essential continuity with late-medieval Catholic Christianity until the early eighteenth century.[5]

Rather than seeing Roman Catholicism as a steady proponent of natural law theory, with Protestant theologians dipping in and out, it may be better to see a distinctive Protestant contribution to the natural law tradition in the development of natural rights theory. This took hold in increasingly secularised form through the writings of Grotius, Locke, Kant and Rousseau.[6] Whereas the Roman Catholic contribution can be seen as an attempt to articulate the conditions of the common good, the Protestant contribution has stressed the independence of individual, family and church against potentially tyrannical civil government. Even today, one notes different emphases: while Catholic writers still make valiant attempts to combat poverty and defend the centrality of marriage on a rational and universal basis, Protestant writers are more likely to be found vigorously defending liberty of conscience and freedom of speech.

These two positions reflect two of the three arguments outlined above: the argument from the common good and the argument from institutional independence. The argument from conscientious witness has its roots in Christian thought as well. It has traditionally been the radical denominations of Reformed Christianity, such as the Anabaptists and Mennonites, who have emphasised conscientious witness as the distinctive Christian political stance. Logically, this is the only political argument open to Christians who think that the effects of sin on the unbelieving world are so deep that there is no justice outside of the pure and gathered church of Christ.[7] It, too, has had a significant, if unintended, impact on our political traditions.

Three arguments – the biblical grounding

As Christians we are to ‘seek the welfare of the city’, acting as ‘salt’ and ‘light’ on our society.[8] The Barth–Brunner debate shows that the key point of difference among Christians who have reflected on the political implications of that command has been the question of the effect of sin on moral convictions or beliefs. Perhaps the main lesson to be learnt from the quantities of theological ink that have been spilled is that Scripture does not adopt one single systematic position on this point. Rather, its teaching taken as a whole seems to suggest that the moral effects of sin are culturally and individually variable. This is very significant: it means that all three arguments have biblical warrant and are valid principles for Christian citizens to adopt.

1 Common good

It is the first argument which raises centrally the problem of the effect of sin on moral beliefs. Clearly, when it comes to making judgements about what is good, or simply what to do next, within the context of the church, our families, and our personal life, we should use all available arguments from Scripture, spiritual insight, Christian tradition, experience and reason. Is this true for the domain of civil government as well? Yes – but only if we believe in a government of the godly. If we assume that some form of democracy is the better form of civil government and is biblically mandated,[9] then our commitment to democratic equality should lead us to accept that law should only be based on moral beliefs which unbelieving fellow citizens are capable of sharing.[10] Are there any such beliefs?

The Bible asserts the moral unity of the human race. Against all forms of parochialism there is consistent teaching that God made all people from ‘one’.[11] In the image of God we were created male and female to be one extended family that fills the earth.[12] As an entire family we fell from a state of natural innocence to become self-seeking godlets at war with God and each other.[13] But God chose his people Israel to be a living witness to the nations of the goodness of living under his law. And now by one supreme act of self-disclosure in Jesus, one sacrifice and one public vindication, God is reconciling the whole world to himself.[14] The resurrection is public proof of God’s intentions![15] The good news that we can enjoy the privilege of being sons and daughters of God is for everyone.[16] And – making all due allowances for differences of taste and talent – there is one way of living as adopted children, which is to model our lives on the humble love of God’s own beloved Son, in the power of the Spirit he has poured out on us.[17] Spanning all the differences of gifting and calling is a single way of being and doing which conduces to universal human wellbeing and well-doing.

At the same time, the effects of sin are deep and pervasive.[18] The person without the Spirit cannot understand the things that come from the Spirit of God, so the message of the cross is foolishness to those who are perishing.[19] Christians are described as new creations, ‘born again’ of the Spirit.[20] Certainly the Holy Spirit has a radical effect on Christian moral awareness. Our sensitivity to sin, and our desire and capacity to live holy lives should be transformed.[21] But it is noticeable that the content of such transformed lives is in essential continuity with ‘the law’.[22] The law that was revealed to Israel was to be a light for the other nations, which would make them envious; they are expected to be capable of grasping the value of what they did not yet know.[23] The law is not abolished but reaches its fulfilment in the command to love, and love itself is raised to new heights by the example of Christ.[24] This is not only Jesus’ explicit teaching, it is the underlying logic of the Sermon on the Mount. Sure, Paul can trace the wilful suppression of the truth about God leading to thinking that is futile,[25] and which has a particular impact in the realm of sexual ethics. It is possible for individual consciences to be seared, incapable of judging rightly.[26] People love darkness.[27] Yet even ‘bad’ people know what is good for their children,[28] and even pagan Corinth did not fall to the depths of depravity for which Paul had to rebuke one individual church member.[29]

Paul’s brief comment in Romans 2:14–16, which lies at the heart of the interpretative and theological debate, is thus very significant. In this verse Paul seems to be affirming a universal, but variable, knowledge of sin and of goodness (‘whenever Gentiles do things required by the law…’). It seems that there is no subset of ethical requirements which only Christians can admire.[30] There are no two levels of morality.[31]

So the Bible itself suggests that when it comes to moral beliefs we should draw a distinction between the content of ethics and its grounding in the special revelation of God in Christ and through Scripture. The person without the Holy Spirit living in them cannot put their faith in Christ or his word.[32] Public appeals simply to what Jesus would do, or what Scripture says, are by themselves inadequate in the context of democratic law-making. The Spirit’s absence may also mean that certain moral positions are obscure (note again Paul’s comment about sexual ethics in Romans 1!). But this seems to be a matter of cultural and personal accident; it is one of the disordered consequences of sin in the world, to which we also are not immune. There is no fixed line between the moral principles non-Christians can and cannot hold. If we have to generalise about the moral effects of sin, Calvin’s suggestion makes sense: people know in general terms what the requirements of the moral law are, but are susceptible to refusing to apply those precepts to themselves.[33] Inconsistency and partiality are normal, but there is no moral content which is not in principle shareable by everyone.

2 Institutional independence  [su_frame align=”right”][/su_frame]

Under God, authority is divided. This general principle is most obvious in Paul’s discussion of the jurisdiction of the church in 1 Corinthians: the church is to judge disputes between those ‘inside’; it is not to judge those ‘outside’.[34] The church here is clearly being understood institutionally, as occupying a certain social space: appointing to offices, preaching the word, administering the sacraments and disciplining the errant.[35] But the division of authority also emerges in Paul and Peter’s discussions of civil rulers.[36] Notwithstanding the universal kingship of Christ, kings and all other civil rulers have a genuine authority from God to reward good and punish evil. Marriage and family seem also to represent another domain of authority, prior even to government and civil authority in the creation narrative, and with their own internal principles of mutual submission, love and obedience.[37] Family is also – in the same way as civil authority – a limited jurisdiction for the present age to be subsumed at the end of time in the full authority of the Son, the heavenly bridegroom, the King of kings.[38]

As the Dutch neo-Calvinists so rightly emphasised,[39] we should therefore be thinking in terms of a law of civil governments, a law of the church, a law of marriage and family life, and a law of personal responsibility. If ‘law’ seems the wrong word here, this is only because we get sidetracked by the false assumptions that punishment is the essence of law, and that all law is the State’s law. The essence of law is the authority to render determinate judgements about the requirements of the good within the bounds of the jurisdiction one rightfully holds. Under Christ the authority to determine the requirements of the good has been divided up. Law is plural. And it follows that attempts to conflate the different domains of authority, as in state absolutism, is a form of idolatry, because it asserts a fullness of authority which properly belongs only to Christ.

3 Conscientious witness

As regards conscientious witness, it is important to notice that the New Testament actually contains the roots of two different ideas. The first is that there is a domain of personal liberty or discretion, in which each individual is free to exercise judgement as he or she thinks best. This is really an extension of the principle of institutional independence applied to the personal sphere. It is at work in 1 Corinthians 9 as Paul defends his decisions about marriage and salary. His liberty ‘to become all things to all men so that by all possible means [he] might save some’[40] presupposes a certain freedom of action. Without trying to develop a complete biblical account of the proper scope of personal liberty, we can note that Jesus treats the practices of generosity with money, personal devotion and fasting in a way which implies a similar individual discretion.[41]

We can distinguish the domain of personal liberty from an ultimate appeal to conscience in all matters. It is this second idea that we associate with conscientious witness, and it is at work in the apostles’ refusal to stop preaching when prohibited.[42] This was a collective act of dissent from an illegitimate attempt by government to suppress the church’s freedom to preach the gospel. Later on, one can sense Paul’s frustration as he is left to carry that responsibility on his own.[43] The Christian tradition contains many examples of similar dissent, from the refusal to participate in civil idolatry and the refusal to act as a judge or participate in military action,[44] to the refusal to swear oaths,[45] join trades unions,[46] or participate in abortions.[47]

The Christian’s ultimate appeal to conscience derives from submission to Christ. God has full and supreme authority, which is exercised through his Son.[48] In Paul’s letter to the Philippians some of the consequences of this are traced out: it is Jesus, not Caesar, who is our ‘Lord’.[49] Our citizenship is heavenly, not Roman, so we eagerly await the arrival not of Caesar, but of the real Saviour (or ‘Liberator’) Jesus.[50] So there are limits to the subordinate authority of government over us. The Christian should be characterised by independence of thought, frankness of speech and integrity of action, all rooted in a strong grasp of the purposes of God for his creation, revealed in Christ and through the Scriptures. At times it means the simple and courageous assertion to the world: ‘you’re wrong!’

In short, cultural and individual variation in the effects of sin on moral beliefs makes all three arguments both possible and necessary. The Bible elevates the arguments into principles for Christian citizens: seek the common good, divide authority, and respect conscience. For there is always a hope of consensus around the good, always a need to divide authority, and always a call to bear conscientious witness.

From natural law to human rights

The biblical material outlined in the previous section suggests that the three principles really belong together. The remarkable fact is that they were already brought together in human rights statements in the second half of the twentieth century. This can clearly be seen in the text of the Universal Declaration of Human Rights (1948).[51] As conceived in response to fascism and communism, the purpose of the Universal Declaration was to protect human beings from state oppression such as murder, torture and imprisonment; to give human beings fair trial rights and rights of democratic participation; to protect property, privacy and the home from arbitrary interference and confiscation; to limit the state, in particular in relation to the church, the family and the individual; to secure basic welfare conditions through rights to education, healthcare, work and social welfare such that each person could enjoy an adequate standard of living; and to ensure the equal protection of these interests without distinction of race, sex, religion or other personal status. The language of rights is not ideal, but it reflects the underlying assumption that it is a fundamental requirement of justice that government should be for the benefit of human beings and not vice versa.

A number of the features of the Universal Declaration merit closer attention. The family is described as ‘the natural and fundamental group unit of society’. The right to manifest religion or belief ‘in teaching, practice, worship and observance’ is enjoyed ‘either alone or in community with others and in public or private’. There are rights to freedom of conscience and freedom of opinion and expression. ‘Equality’ is limited to the equal enjoyment of other rights and liberties. The rights and liberties enumerated are as much about keeping state power within proper boundaries as identifying basic moral interests which the state should protect and promote. It is true that there is a certain tension here – which has become even more apparent as the human rights canon has expanded in subsequent decades – between a ‘constitutional’ concern to limit government and an ‘ethical’ concern to specify the good that government is supposed to promote. It mirrors the Protestant–Catholic difference. But this combination of universal goods, freedom of thought and conscience, autonomy of family and church, and limited state authority is a genuine and attractive expression of the Christian political tradition.

So what is going wrong?

At the heart of several recent political and legal changes lies a tendency to undermine each of the three principles.

The universal response to what the Archbishop of Canterbury was (erroneously) supposed to have said in his lecture on Islam in English Law shows that there is still a strong commitment to the idea of the common good.[52] The introduction of Sharia courts with a distinctive criminal jurisdiction over Muslims is simply not on the agenda.[53] The challenge we face is the growing sense that there is no common good in the areas of sexual ethics, family life, medical ethics and bioethics. But the problem is not simply that as Christians we have to work harder to explain the goodness of our ethical tradition;[54] the problem is that an alternative ethic is being privileged under the guise of ‘equality’. This claims legitimacy by being agnostic about what is good, while at the same time smuggling in its own preferred vision.

Institutional independence is also under threat. The House of Lords recently decided that a minister of the Church of Scotland could bring a sex discrimination claim on account of her dismissal for having an affair.[55] The problematic feature of this case is the ruling that contrary to the Church of Scotland Act 1921, and a long-standing presumption of English law, church bodies are subject to oversight by secular courts and secular law in matters of the appointment and dismissal of ministers. Church autonomy has been further undermined by the removal of the presumption of public benefit from religious charities and the imposition of new accounting requirements to the Charity Commission. Domestic human rights lawyers, most notably those on the Parliamentary Joint Committee on Human Rights, are increasingly justifying the limitation of freedom of religion so that in practice it only effectively protects freedom of thought.

The principle of conscientious witness is also under threat in a number of ways. The ‘harassment’ and ‘hate speech’ strands of the equalities agenda run a serious risk of stifling legitimate public debate. A sustained campaign to preserve freedom of religious speech in the context of the criminalisation of religious hatred resulted in an important saving clause protecting the right to criticise. However, a similar clause in the context of incitement to hatred on grounds of sexual orientation may well be repealed. The United Nations has passed several resolutions calling for the banning of ‘defamation of religions’, and one UN Special Rapporteur justifies this by reference to ‘ideological discrimination’, which seems to mean the expression of disagreement with religions one disagrees with, and Islam in particular.[56] From the direction of democratic political theory comes the argument not simply that one should seek common ground with those with whom one otherwise differs, but that one is somehow acting wrongfully in drawing attention at all to the deeper theological grounds for one’s moral position.[57]

When we turn from speech to action, we tend to think in terms of conscientious objection, rather than witness. Since the Toleration Act 1688 first gave relief to tender consciences in matters of uniformity of public worship there have been several instances in which the law has allowed dissenters an exception. The classic instances in English law are oath-swearing and conscription. From as early as 1726 a series of annual acts of Parliament allowed Protestant non-conformists to take up public office, and the worry today is once again around public office-holding. Questions are being asked whether those upholding traditional Christian beliefs can occupy certain offices.[58]

These developments are made publicly plausible by abusing key ideas of human rights, equality and public reason. Human rights standards, which represent an ethic for governments, are being applied ‘horizontally’ to individuals, families and churches without regard to the morally significant differences between them. ‘Equality’ – which is too easily subverted into an empty vessel waiting to be filled with one’s own prejudices – is gaining a life of its own and being used to become a super-right, overriding other human rights and stifling discussion about what is morally good. ‘Public reason’, which has its basis in the self-discipline of participants in democratic discourse, is being wielded to silence religious voices in public.

Conclusion

What all these changes have in common is their absolutist tendency. The state’s regulatory reach is growing inexorably and on the basis of a dubious set of ethical values. In this sense, the three principles set out in this paper are valid not simply for Christian citizens as we find ourselves in a moral minority. They are good for all minorities. If it is true that we are heading for a society characterised by ever greater moral and religious diversity, a political programme which seeks the common good, divides authority and respects conscience has never been more important.

Julian Rivers studied law at Cambridge and Göttingen universities and is now Professor of Jurisprudence at the University of Bristol. His research interests lie mainly in legal and constitutional theory, with a particular interest in the interplay between law and religion.