A transcript of Dr Mike Ovey’s address to the Freedom for Faith 2016 Dinner
I want to focus this evening on quite why same-sex marriage is worth contending with in the public square.
Just to remind you of the backdrop that we have worked through today at the conference. First of all, we work in a world that thinks it is good and we aren’t. Secondly we work in a world that thinks it is pro-love and thinks we aren’t. And thirdly we work in a world where Sophists have become Pharisees. This means we are speaking into a situation where those who oppose us have the characteristic pharisaical problem of self-righteousness and contempt for those with whom they disagree and in particular, pride themselves on upholding love while in fact attenuating thinning out both God’s love for sinners and the right kind of responsive repentant love that sinners should have for the God who saves by His grace. Earlier if you remember, we finished off with the challenge of articulating to those with whom we disagree, a richer account of love and a more Biblical account of love.
Now though, we need to focus more on the challenge of a law permitting and enforcing same-sex marriage. Please note the way that I am actually putting that. It’s not just a question of permitting same-sex marriage. Laws permitting same-sex marriage in our situations either here or north of the equator inevitably are laws which enforce it. My basic thesis if you like, is that we are facing a paradox here of a law-bloated society that is covertly law-less.
Hemmed-in by Laws
I am these days a hag ridden hoary old operator in the rough tough world of English theological education. It is not all thin-sliced cucumber sandwiches. As such I am a legal consumer as the leader of a small theological college, a small charitable business, with about 30 staff, some real estate, and some 150 students. What does it feel like? Schizophrenic. Yes, I am grateful that my faculty currently has freedom of thought and expression in the classroom and that our staunchly protestant trust deeds are for the present completely legal. I am grateful there’s a police force which maintains law and order in my bit of north London and that my family and I have access to healthcare and the courts. On the other hand, as I go about exercising my religious freedom, I daily experience being hemmed in by ever-increasing regulation. Others experience this too. But my experience as a citizen is increasingly of a Kafka-esque UK where rules breed like rabbits and where it is hugely difficult to keep us with, let alone comply with, the next batch of regulations. I’m now the first line in N14 4PS, the postcode of my college, in the battle against terrorism. That fills you with confidence! The precise ambit of these new rules are anxiety provokingly unclear, and the regulations, whatever they momentarily are, are defended with real moral intensity. When you have had to redo the floor of one of your basement rooms in order to be able to sustain a new library there, and you are told that you have to do it with 18th-century building techniques, and this is told to you with moral passion, you do find yourself reaching for the gin and tonic. It’s not my experience thankfully, but at the same time, as a UK citizen—and perhaps especially as a Christian citizen—I experience the bewildering labyrinth of stifling and impending regulations. Schizophrenic.
This bears on why I think we must contest this issue and explain why we must. The jargon term for what I have just described is juridification. What difference does it make to the question of the law relating to same-sex marriage? After all, it’s not an obvious given that Christian conduct in recent years means that we should be involved in the public square. So before I unpack how juridification does play out in northern hemisphere Europe, let me contrast two different models of church life.
Two Models of Church Life
1. Church as Mirror
First of all, there is the church as mirror. Here, church life mirrors society in which we’re set. So it’s well intentioned, you go out collecting for Christian aid, it will be generous where it can, and contributes to the relief of poverty overseas. It fits in with the culture around it, often because it wants to identify something positive in that culture. The causes it supports are largely those that the surrounding culture thinks right. Accordingly, to take the issue of the day, it will support same-sex marriage. It certainly can, as a church, cause discomfort and even offence to some because of its stance on for instance human trafficking and ethical investment. But the offence it causes is actually very safe. It is an offence that, as it were, has already been legitimated. The offence it causes has already been approved, received the imprimatur of significant opinion media formers like ‘Bishop Sydney Morning Herald’. A safe offence, because it’s critically about a chic cause. Commitment to these causes certainly will be heartfelt deeply, but championing these causes is a mark of belonging to society, rather than standing against it and speaking prophetically. These are the areas where society, or more accurately, its opinion formers, are already moving. Put another way, our culture already believes that people trafficking is wrong. It doesn’t need us to persuade us of that. It may need motivation to do something about it, but actually all we’re really asking you to do at that point is honour its own ideals. Now, don’t misunderstand me. It’s excellent that our culture and its liberal churches think that people trafficking is wrong. The point is, people tend to think that, whether or not they’re Christian. Agreeing with a Christian that people trafficking is wrong does not mean accepting the rest of that Christian’s beliefs. So when I say that ‘I as a Christian say that people trafficking is wrong’, this is actually very safe. Well-intentioned, but profoundly safe. After all, people trafficking is seen as so monstrously wrong, that our culture is just glad that we’ve at least got that one right and less concerned with how we got there. If anything, I suggest they think along the lines of “well, she may be a Christian, but at least she’s got that right”.
Please note some interesting features. First, this vision of Christian life risks being fairly works-based. You show, you prove your Christianity, by adhering to the causes of the day, whether it’s people trafficking, prisoner rehabilitation or whatever. The causes may be great, but there is that question—is being a Christian pretty much acting out contemporary political correctness, whatever form political correctness takes in your particular culture.
Secondly, if you’re showing and proving your Christianity by adhering to the causes of the day, what about the church-goers who don’t support them? Is there not a risk that one starts to weigh their Christianity too, on the basis of what you see, and what you see is conduct you think is not Christian, isn’t there a risk of legalism? I think so.
The third thing is this, does this kind of Gospel actually have good news for a people trafficker or is redemption just for those trafficked? This has always been a problem with the liberation theologies of the twentieth century. They drew attention to real injustices but the question is not whether there is good news for the poor and oppressed, but whether there is in those systems any good news of forgiveness for repentant rich and oppressors. In what sense does a church like this actually have good news for people who really are sinners? Like people traffickers? And if so, what is it?
2. Church as Cloister
Then there is a different kind of church life, where one is not merely mirroring the surrounding culture, but is fully immersed in a bible teaching church. It is a deeply satisfying life because two or more evenings a week you’re taken up with church activities. There’d be a prayer meeting, probably some other groups like mums and tots, house groups or hopefully a reading group. Much of Sunday will be spent doing church, there’ll be church weekends away, another significantly satisfying time commitment. There’ll be a commitment to outreach, costing time and effort, and possibly, depending on who comes to your evenings, uncomfortable. It will though be satisfying and faithful. In terms of understanding of oneself, one is first and foremost a Christian, one is committed to work or career for sure, but with the qualification that one does it, to honour one’s employers for the Lord’s sake. But life in fact revolves around the church family.
Please note—this too is a very safe life. Or has been. This is a safe life because it is not heard publicly, and is safely unknown in the public square. And safely ignored.
Recently for instance, I was in conversation with a well-informed academic in academic administration, in a university near us, who was astonished to hear that actually some churches may reach three figures in their congregations. Incredulous that some London churches have rolls in their thousands. He’s simply never heard of this. It is unknown, and it is a little bit unwelcome.
So two very different kinds of church life. To some extent of course they consciously contrast in visions. Now let me be clear, if you push me then despite my criticisms I prefer the second vision of church life. Why? Because it preserves more of the Gospel intact. It is more faithful to the Gospel as I understand it. There is genuinely good news for sinners including the people traffickers and a stress on grace not works. And a stress on the saving cross of Christ. But both share much. This commonality comes about because both visions feature model citizens. Very safe citizens, because they are not, at the moment, public offence citizens. It’s intriguing how much UK public order legislation circles around the concept of public offence. It goes right back to the 1936 Public Order Act in the days when people were legislating against fascism. Have you done something that offends someone in public and leads them to disorder? More recently, the UK Public Order Act 1986, Sections 12 and 14, enshrine the idea that an official may take action not just when someone himself or herself causes serious public disorder, but if their assemblies or processions may result in that from others. I’m covered, not just when I do the writing, but when I provoke my opponents to kick over the traces, even if that’s unreasonable. UK Public Order laws want me to be a low risk citizen.
Now at first glance, that second vision of Christian life certainly is very inoffensive. Inoffensive because it does not rock public life or public order, because it raises little or no notice in the public square. What offence there is about the cross tends to take place behind closed doors by invitation only. To that extent, that second vision of Christian life is life with a shadow attached to it. It looks like full immersion in the life of Christ, but there is also a shadow identity that follows that citizen—the citizen of twentieth century secular Britain.
Those two different identities—the strong Christian identity and the shadow identity of the perfect citizen—can be maintained side by side precisely because they don’t meet. And there is no doubt that a big bit of many of us says that’s fine. Let’s keep on doing things like that. The question is whether that strong sense of Christian identity and that shadow identity of the safe citizen can be kept conveniently apart. Less and less so. Less and less particularly because of same sex marriage.
Here we turn to the major issue that I identified earlier in the day, the process of juridification. Broadly here we’re talking about the phenomenon whereby more and more the behaviour of citizens is regulated directly or indirectly by the state. That means that the boundary between the public square and what goes on ‘safely’ in the private sphere, is constantly shifting. It is not a stable boundary. Rather juridification means that the state is constantly extending its boundaries into what used to be thought of as private. This means that as we think about the viability of the Christian immersed in church life, we should note that the state does encroach on areas that aren’t church: potentially the regulation of Sunday Schools, youth clubs, provision of services in the sense of conducting marriage ceremonies and so on. Can you see how same-sex legislation has the potential to erode precisely that nice safe private/public divide? It’s a thing of the past and that erosion follows from the process of juridification.
Further, even when the initial rules that get applied look innocent enough, juridification includes the way that an area of life becomes open to regulation. That’s obviously one of the issues about same sex marriage in the UK. Current UK legislation allows a conscience exemption to Anglican clergy over refusing to conduct same sex marriages. But this hints that in principle the issue is open for legislation and my right of conscience depends on the state, and what the state gives it can surely take away. In any case, with the UK and Europe, the form that legislation now takes, as it extends the public square, is highly significant. The fashion is for very broadly framed rules. I have for instance to make reasonable provision to ensure equal non-discriminatory access in our applications process. Now, as of three months ago, at our last inspection, we’re not getting caned for that, but the reason for that is not that we are clearly keeping the law, the reason is that we fall outside the current prosecution policy. I don’t know for sure if we’re keeping the law, and I don’t know if the enforcement authorities will change their policy tomorrow. If you like, it’s the difference between driving down Kent Street knowing that the speed limit is 50km/hr and you’ll get prosecuted once you get past that, and driving down Kent Street knowing that there’s some kind of speed limit but not what it is precisely because the traffic police prosecute you depending on whether they reckon you’re driving at a reasonable speed or have dark hair.
Legislation by Prosecution
Note two things here: first the rule of law in the sense of the citizen knowing predictably, what his or her liabilities are has just gone right out of the window. Secondly, what the law really is, is effectively laid down by the prosecuting agency. Think in terms of Montesquieu's separation of powers. In The spirit of the Laws, Montesquieu draws a distinction between legislative, executive and judiciary. But here, in this juridification process, the separation of powers breaks down because the enforcement agency, the executive in effect, has such an extensive say in what the law is and where it applies, it has a legislative function, and whether I’ve actually broken it, it has a judicial function. Now obviously political theory has gone through a few phases since Montesquieu but there’s still a lot of good sense in the separation of powers, not least because sin means it is not a good idea to leave any given official with too much power.
Another significant feature in the current wave of juridification is its increasing tendency to colloquially move on. Put sharply one big difference between the UK’s 1967 Race Relations Act and now, is that we are no longer content to regulate discrimination of the provision of goods and services, but we are moving to suppression of certain kinds of thought. So English speaking secondary schools very frequently now have a presence from same sex advocacy groups such as Stonewall, and the focus here is the acceptance, the affirmation, of same sex relations under the guise of educating children out of homophobic bullying. Please note here that I am describing the process whereby we have lots of law, but the law has been so to speak undoing itself. The kind of juridification I’ve described undoes, dissolves, the great legal virtue of the rule of law. But the values it is increasingly advocating also undo the very function of the state in God’s economy which is the restraint advice and the reward of virtue.
What contributes to the weird situation where the law undoes itself? Let me pick up two features: democracy as it is currently assumed, and the cult of individual rights. In both cases, while both areas talk so much of law, there is an element of lawlessness. Let me explain.
The Rule of Lawlessness
Democracy of course is one of the highest valued goods in our current public square and in a sense, rightly. It is a feel-good word, it is highly emotionally charged, so it feels odd to talk about democratic tyranny. On first hearing, you might think that the idea of democratic tyranny is just sour grapes, what people say when they are outvoted. Naturally, calling something tyranny, can be simply a term of abuse. But that’s not what we’re getting at here. Rather, we want to use it in a precise analytical way. You see there’s a long and respectable stream of Christian theology that analyses when state action or laws become tyrannical. Let me introduce you to the Italian Renaissance humanist Salutati, not necessarily a household name. But he synthesises much of this Christian debate. For Salutati, the first thing to do with any authority is analyse what makes it an authority. Is it something that sets itself up, or something that holds power from above? Christianly, you have to say that all authority ultimately derives from God. A tyrant is someone who does derive power from another, someone who holds authority because it’s been given to him by somebody else, and who then in some way, whether explicitly or implicitly, repudiates the law that sets him up as an authority. Now for Salutati, the tyrant can do this in various different ways. Obviously he can oppress the people over whom he or she has been given charge, for example, by feathering his own nest or favouring his cronies or giving them places in the House of Lords, or baronetcies if they happen to be retiring UK prime ministers.
But note this, he can also do this by conniving and colluding with the people that he rules, against his and their overlord. He may refuse to discharge his responsibilities in some respect by not enforcing laws that his overlord wants enforced. That’s tyranny too, says Salutati, and please note this latter category of tyranny is going to look really good and be very popular. It’ll have mass-backing, laws aren’t being enforced. Of course it will be popular. Suppose the tyrant prevents the taxes that his overlord has asked for—it’s still tyranny because it refuses to be under another’s rightful law. It’s still refusing to be under law even if you dress it up as a democracy. It’s lawlessness. This line of thought goes back to the early Medieval theologian John of Salisbury who sees tyranny at work in the state, in the home, and in the church. In each case, it’s the repudiation of law. It’s there in Thomas Aquinas, it’s ably represented in the Protestant tradition by Samuel Rutherford and his insistence that law is sovereign, lex-rex, law is king, not rex-lex, the king is law.
But remember just because a democracy has become tyrannical, does not mean it makes no laws. It may make its own laws a lot. This is almost unsayable isn’t it, that a democracy can be a tyrant? But would we really say democracy is an absolute good? Not just a good but THE good. We’d immediately want to enter some qualification, wouldn’t we? If for instance, and the French theorist Alexis de Tocqueville uses this example, if you’re a native American around 1840, you’re not going to be too pro-democracy, because it’s precisely democracy which has been used to strip you of your land and leave your people destitute and starving. Because you’re a minority. And in de Tocqueville’s phrase, there is a tyranny of the majority. Tyranny clad in democratic form. Democratically elected presidents, democratic laws, democratic courts, all of which worked to perpetrate gross injustice on Native Americans.
And it’s not just American history. It’s UK history too. It is a form of lawlessness isn’t it, to say Vox Populi, Vox Dei—the voice of the people is the voice of God. Because one is saying the people are NOT under law, they speak FOR God. Dangerous stuff. This is a breath-taking saying. Even in the early Medieval period, when the Juris Praxis says about the king of England, even back then what we don’t think of as a particularly enlightened time, he says of the king of England that he is Sub Deo et Sub Lege—under God and under law. It’s no answer to say that democracy has safeguards—two-thirds majority from the amendment of the Bill of Rights or something like that. The point is the majority can amend it. I most need protection from the majority precisely when there are three quarters of them against me as an individual. A majoritarian trigger like that, we’re just talking how big a majority. Tragically the UK debate on same sex showed a democracy that didn’t really think it was accountable to anything above it. In that sense, it’s lawless.
There again, what about the second great feature of our public square, our rights culture, our rights discourse. I do though want to say, that it’s not just that we’re living in a rights culture, but in an entitlement culture, a narcissistic culture. The American social psychologist Dr Jean M. Twenge, (and the reason why I’m citing Jean M. Twenge is for one, she is very, very good and two, I love being able to say Twenge)—Jean M. Twenge shows that if you stack up the statistics year by year of American students entering university programs, you see the narcissist profile rising and rising. Now, I of course as a late middle-aged man am thinking ‘absolutely’, and I do my old grumpy old man bit and talk about them even today. Then on the next page, Twenge observes acidly that we also see that the same cohort of people who were young in the sixties, nurtured and matured in the seventies and eighties, took jobs in the nineties, demonstrate the same trend to increasing narcissism. It’s me too. It’s not just the next generation. There’s a Latin proverb of course that captures it nicely: “The times change and we are changed in them”. And so too with us. Can I really say that as I watch the entitlement culture around me that I haven’t been infected by it? Entitlement, as Twenge observes, isn’t merely earned, it’s given to me as a right … as a right. Key observation for her is all those American cars driving down the highway with ‘princess on board’. An odd sentiment of course for a nominally republican country—nevertheless ‘princess on board’. It says entitlement and royalty. In the words of the L’Oréal advert which you probably have here, it’s certainly transmitted in Europe, “you’re worth it.” And of course, when I talk about that kind of entitlement, that kind of right, I am talking about something which I don’t even have to earn. Increasingly I’m talking about something I confer on myself. You owe it to me. I think I’m so important, so wonderful just by being me, that actually all kinds of things should be done for me. I confer my own entitlement, what I and my friends in collusion do, and we confer it on each other. And Twenge makes the point that when an entitlement generation and an entitlement people are challenged; the response is disbelief and rage.
Third point about rights: Isn’t it remarkable we speak so much of rights and so little of duties? We have a Universal Declaration of Human Rights but no Universal Declaration of Human Duties. It’s interesting historically, if you go back into the nineteenth century, you find that the founder of UK humanist secularism, the coiner of the term secularism, George Holyoake, even Holyoake who has been so maligned in so many ways, starts by speaking of duties. If you look at his successor organisations now—Humanist Association, National Secularist Association etc. etc. what do you find? It’s all morphed into a statement of my rights. The nineteenth century theorist Giuseppe Mazzini saw this coming. He said, “It’s all very well to talk about the rights of man, which we associate with Thomas Paine, but what we really must do is talk about the duties of man—duties set by God”. After all why should I accept your account of your rights when they conflict with mine? Why should you confine my rights? The Roman Catholic theorist Marcello Pera, just at the moment is making exactly the case that if Europe is really serious about rights, it needs to recover the grounds that gave them. And it wasn’t atheist secularism that did. It needs to recover its Christian heritage, which means recovering the concept of individual duty.
Rights and Duties
Fourth and last point about rights, and for our purposes this evening this is the most important. The way we speak of individual rights implies that others are under a duty to respect them … covertly, but they are. Work that through in the same sex marriage instance. When you say same sex couples have the right to marry and enter that institution, you’re actually saying that the rest of us would be under a duty to recognise that marriage. This is not a case, it’s not relativism of saying “oh well, right for you, wrong for me”, or whatever, “good for you, not good for me”. It is not a relativist conception of rights at all. It is coercive. This is the point we did not make forcibly enough in the UK debate, and you must. We did not strongly challenge enough that same sex marriage was not just letting a group have a liberty, same sex marriage goes way beyond that. It is not just saying “you do that if you feel like it”, it is saying “we all recognise that you are what you say you are, a married couple”. Same sex marriage in that sense is impositional and coercive. That is why the UK government had to put an exception in for Anglican clergy. Not for everyone of course, just Anglican clergy … because we tend to be a cut above the rest over providing services for marriage.
It gives the game away doesn’t it? Yes, it’s coercive. It’s saying yes, when it comes to the hiring of that church hall, of course the same sex couple has the same right to have its reception there as the heterosexual couple that married in the registry office. Of course we’re saying that. This is not about choice. This is about coercion. With this, it’s reinforced of course by one of the points that people have been making earlier about the use of language. Consider what Iain Benson was telling us earlier about how in Ontario it’s not enough to say “we will try to stamp out homophobic bullying.” No, it goes beyond that. What the government wants, or what it wanted actually was affirmation. It wants the “yes, you’re right”. Very telling. The rhetoric of affirmation. And if you don’t provide that rhetoric of affirmation of course, then the risk is that it will be written off as, simply saying, hate speech. Hate speech. When you say you disagree with me, it’s hate speech. But that again is an imposition isn’t it? It’s saying “even when you try and express yourself in as irenical a way as possible, that’s not good enough because actually you disagree with me and what I think. It doesn’t necessarily mean anything. That again is I think one of your challenges. That there are so many impositions, not just of alien values, but of thoroughly corrupted values which are going on in this debate. And that must be exposed. And that was one of the areas where we failed, I think.
So whether we’re talking about democracy or the way that rights theories have developed at a popular level certainly, what we’re talking about in an important sense is lawlessness. Because there is nothing above me. I am entitled. I’m the final reference point or I and my friends are. And that abolishes the Gospel. It abolishes the Gospel by abolishing the idea that I am in any sense really under law. Now all of this is not an explicit repudiation of God’s law, but it does set us up to see ourselves in principle and in some areas of life as not under law, not under anyone’s law, even God’s. And that sense that we are not under law does not stop when we walk into a church building. I will feel as entitled to my sexuality or whatever it is as I step inside a church as when I stand outside.
A Savage Irony
So let me say here something very obvious theologically: individuals and states, even democracies, where there is a massive consensus working together, remain under law, in the sense of God’s law. That is amply attested in the Scriptures, not least by the book of Daniel and certainly by Romans 13. Our current trend to juridification is savagely ironic in that the lawless are using law more and more. In fact democracy and individualist rights seem to feed off each other, since one of the burgeoning areas of legal growth is making rules about things that some individuals feel entitled to, but which wouldn’t have been areas for legislation in previous generations. Think of the regulations about providing services irrespective of conscience commitments. What’s more, this public square will be increasingly hostile to the Gospel and unwilling to tolerate it. In its lawlessness, it will increasingly resent Christian faith because it will see it as authoritarian legalism, in its law-bloated-ness, it will increasingly resent Christian faith, because as we deny that democracies can legislate morals, we look lawless to them. The flip side of saying our public square is lawless and law-bloated, is that correspondingly it sees us as legalist and lawless. As such it will feel bound to enter in to restrict what it sees as power abuses at the expense of other people’s rights and to impose legal duties on what it sees as our antimonial lawlessness. Its values do battle with the Gospel.
I haven’t actually produced a text for this talk yet, but my text actually would be Acts chapter 4 verses 18 & 19 where Peter and John are instructed not to preach in this name. Classic intervention! Well, we’re not actually telling you not to believe something but you can’t preach it … who should be obeyed, God or human beings? Obey God not human beings. And that’s because you love God and everything that he’s done. And it is also because you love your neighbours. You are doing them no favours in the long run if you do not contend in the public square.
Rev Dr Mike Ovey was Principal of Oak Hill Theological College, London until his death in January 2017.
This talk was delivered at Freedom16, a conference held by Freedom for Faith in Sydney on 12 August 2016. The mp3 audio of this address can be found here. The transcript was originally published here.
Photos: Michael Galkovsky (top), Ben Sutherland (body); flickr