Crime and Immorality

Dr Meg Warner seeks to find an answer to the question Does the Bible Really Say…that Sex Outside of Marriage is Wrong? by focusing on Deuteronomy 22. This post poses the question "why?"

In the previous post I discussed the four hermeneutical principles she describes as essential. They are not wrong but one-sided, designed to support this conclusion:

The combined effect of these four principles (there are others, but these will do for our purposes) is that it is not good enough (or safe enough) to take a single biblical verse, passage or story, and to maintain that it should be understood as authoritative for the conduct of our lives today. That does not mean that we cannot, or should not, attempt to take the Scriptures as a guide for living – we certainly should do so – but our approach needs to be comprehensive, critical and cautious if we are to avoid doing violence to the text and to one another.

The principles are not in fact robust enough to warrant this conclusion in its absolutist form. It is of course obvious to virtually everyone that one cannot simply take a verse, passage or story at random out of its biblical context and declare it binding on our conduct today. But this does not mean that there are no specific biblical verses that can be identified as "authoritative for the conduct of our lives today." Christ's summary of the law would seem an obvious example. 

I doubt that there are many who would disagree with the notion that "our approach needs to be comprehensive, critical and cautious" (even if they do not practise what they preach). The main problem therefore is the insinuation that her argument is only with people who rely on illegitimate proof-texting. Now I can well believe that Meg Warner has come across people whose use of Scripture was uncritical, insufficiently cautious and piecemeal proof-texting. But a Christian scholar seeking an honest answer to the question posed should arguably ignore such nonsense and engage with the arguments of those who seek their best to be comprehensive, critical and cautious.

It is not impossible that Warner has picked Deuteronomy 22 because someone used verses from this chapter as a proof-text to say that sex outside marriage is wrong. I myself do not remember having come across this before and her stated reason sounds different:

The foundation for biblical views on this subject is found in Deuteronomy 22’s collection of law (or ‘instruction’) about sexual conduct outside marriage, which sets out a series of examples of proscribed behaviour.

Unfortunately she does not tell us why she thinks Deuteronomy 22 is foundational in this sense. I want to suggest that it is not. The chapter concerns property laws and family laws rather than sexual behaviour more broadly. The critical point here is that the second half of the chapter considers just penalties for sexual crimes; it does not say anything about sexual immorality which was not criminal in ancient Israel. Warner is right to stress that we need to understand the cultural background to make sense of these laws. We would need to bear in mind such factors as (a) daughters customarily given in marriage at a young age, (b) the father's responsibility for and authority over the woman until marriage, (c) the legal nature of engagement, as well as cultural considerations which also relate to biology such as (d) inequalities between men and women with regard to forced intercourse and (e) the more serious consequences of loss of virginity for women than men not least in the light of the different ways in which paternity and maternity could be established in the ancient world. All of this then relates to the custom of marriage presents given by the bridegroom and his family to the bride's family (which in the light of the complaint in Genesis 31:15 may have been held by the bride's family for the bride). The law also seems to assume the practice of polygamy as the obligation to marriage in Deuteronomy 22:28-29 is not conditional on the offender being unmarried (although Exodus 22:16-17 suggests that the bride's family can veto it).

The obvious omission is prostitution. This involves illicit sexual intercourse (carrying opprobrium throughout the Bible) which carries no legal sanctions. Why? Because a prostitute is already on the margins of society and a man's relations to wider society are not fundamentally changed by intercourse with a prostitute. This means that we cannot go to the case law for a comprehensive answer to the question what constitutes sexual immorality. The law only concerns itself with certain forms of illicit sexual activity, namely those that disrupt society or profane Israel's holiness by ruining fundamental distinctions.

Does the Bible really say?

Echoing Genesis 3:1, a series of blog posts on ViaMedia.News asks "Does the Bible really say...?" and features most recently Dr Meg Warner, Biblical Scholar in Old Testament Studies and the Hebrew Bible, affiliated with both Kings College, London and the University of Exeter on Does the Bible Really Say…that Sex Outside of Marriage is Wrong?

Her "few essential principles of biblical reading and interpretation" offer a typical example of a sectarian approach to the Bible. (The nature of sectarianism is that an aspect of the truth is taken as the whole truth with consequent distortion of everything.) Here are the principles:

1.  The phrase ‘the Bible says’ is nonsensical.

It is claimed that this is so because the Bible is a library offering a variety of perspectives which are not always consistent and even in contradiction with each other. The church catholic recognises diversity and development within Scripture but it also acknowledges a fundamental harmony and coherence in the Bible, as one might expect of a book whose ultimate author is God. Denying the unity of Scripture goes hand in hand with denying that Scripture is God-breathed and truthful. The phrase 'the Bible says' is not always properly used but it is not nonsensical although it may be inconvenient for those who prefer to pick and choose which parts of Scripture to recognise as truthful.

2.  The Bible is not an ethical guide-book.

It is a common place that there are many different genres within the Bible, not all of which offer clear ethical guidance. It would be reductionist to consider the Bible merely "an ethical guide book" but from this it does not follow that the Bible cannot be considered a collection of writings that taken as a whole among other things offer ethical guidance. If the claim is merely, as maybe with the first and the third point, that one must not pluck a verse and absolutise it as a rule to be followed, fine - but this is hardly what serious theologians have been doing over the last two thousand years.

3.  Mind the Gap

It is obviously necessary to carefully consider how an instruction given within the Bible would have functioned within its original historical context and how this is to be translated into our context, taking into account not only our different historical circumstances but also, e.g., the difference between being the people of God BC and AD. So, yes, "mind the gap" but this is very different from "don't enter this carriage" as if our contemporary context renders any part of Scripture irrelevant. With regard to examples such as the one give, it is important that we say both "this is not to be implemented as law among us" (understanding the reasons why) and ask "what does this say about God and his agenda for his people" (reflecting on what this case law says about Christ and whether there is still a moral imperative for us, even if implemented very differently). 

4.  Cultural Borrowing

There is cultural borrowing in every communication. But there is subversive as well as affirmative ‘borrowing’ within the Bible and there may well be ‘assuming’ due to shared convictions as well as ‘assuming’ for the sake of argument. The specific marital rules within the Torah work from within a cultural context but they are given towards an ideal of marriage that is not simply borrowed or assumed. It would be methodologically problematic to identify as positive teaching only what is unique within the Bible (similar to identifying as genuine words of Jesus only those that no-one else could have said).

A word on the specific example: Warner observes that men and women are treated differently in Deuteronomy 22 and claims that the disparity "has to do with cultural ideas about men and women in biblical times." The ancient cultural background is indeed relevant here but so are biological realities about child-bearing. In our cultural context we take for granted that "having sex" and "having children" are two altogether separate things. Maybe this makes it difficult to appreciate that in a different cultural context the two were much more closely related. This is a serious shortcoming, given that Meg Warner thinks she has discerned what the Biblical laws were all about (protection from shame and financial loss) based on her reconstruction of the relevant background.

In addition, Warner's atomistic approach (reading a passage merely in the light of its presumed historical context rather than as part of the whole of canonical Scripture) fails to consider how Deuteronomy 22 relates to biblical teaching elsewhere on sexual union and sexual immorality and also fails to explore whether there is a development from Old to New Testament. (E.g., the case law takes the marital status of the woman into account when defining adultery but not of the man. Jesus, in contrast to both the OT and the Greco-Roman world, does not limit the definition of adultery to what a man does or wants to do with a married woman. The category of sexual immorality is of course considered broader than adultery in both testaments and in particular is not limited to acts punished under the law which makes it curious to take Deuteronomy 22 as "foundational" for the question at hand.)

 

A Wedding Sermon on Soul Mates

Readings from Richard Bach, A Bride Across Forever and 1 Corinthians 13.

M and F, my research leave meant that I got to know you less well than I would have liked. Please accept my apologies in advance if I’ve got the wrong impression of you.

F – I think of you as in charge of the picture-perfect wedding. I relate to that. Not because I made sure that ours was a picture-perfect wedding. I didn’t. I won’t say more about that. It’s been over 25 years ago and I have been forgiven. But I am a perfectionist. I want things to be just right. Being a perfectionist has its good uses but it can be a real threat to any relationship. Love is patient, love is kind... it is not easily angered, it keeps no record of wrongs.

M – I see you as a man of patience and peace. I suspect that you don’t get easily upset; you’re prepared to give way. I can relate to that. People often see me as a man of patience and peace. But in my case the appearance does not always match the reality. And I sometimes forget that peace is an active thing. It’s not sitting back, avoiding confrontation. Love does not delight in evil but rejoices with the truth.  It always protects, always trusts, always hopes, always perseveres. It is an active force.

True, patient, persevering love is what makes a marriage perfect. How do you find true love? Now, you may well think that is an odd question to ask on a wedding day. You have found your true love!

On the first of December my true love gave to me

seven bridesmaids, six usherers, five flower girls – two page boys,

two best men each with a ring to bring

and a still and a rolling camera.

If that’s not true love...

Seriously. Our first reading gave us a glimpse of what true love should give us:

keys to fill our locks.

When we feel safe enough to open the locks,

 our truest selves step out

and we can be completely and honestly who we are;

we can be loved for who we are

and not for who we’re pretending to be.

This is the enchanting part of the story that Dick Bach tells. The Bridge Across Forever: (subtitled: A Love Story) was published in 1984 and is based on his real-life relationship with actor Leslie Parrish whom he had married a few years before that. The couple were also the main characters of his next book, One: A Novel, published in 88. In the late 90s they divorced.

Fans were devastated to discover that this match made in heaven didn't manage to stick. But maybe they should not have been surprised. In 1970 Bach had divorced from his first wife – with whom he had six children which he abandoned along with his wife – on the grounds that he did not believe in marriage.

After his break-up with Leslie Parrish, he explained that lovers don't have to stay married forever in order to be lifetime soul mates.

I don’t know whether Bach thought of his third wife as another soul mate or whether it was a case of “Look, you’re not my soul mate – that’s wife number two – but you’re the one with whom I want to spend my old age.”

Bach didn’t just have a wrong idea about marriage. He also had the wrong idea about soul mates. So let me tell you the truth – as my wedding present to you. In a nutshell: You don’t find a soul mate. You become a soul mate.

If you fall for that lie that soul mates is about finding the perfect fit for you, there is a very high risk that further down the road you end up discovering that you have married the wrong person and that your real soul mate is this new colleague at work or this old school friend with whom you have reconnected. And of course that won’t be true either.

You don’t find a soul mate. You become a soul mate. It is a vocation; it is a commitment; it is something you need to work on day after day and year after year.

Love ... does not envy, it does not boast, it is not proud. It is not rude, it is not self-seeking. Love is becoming a safe space for someone else:

When we feel safe enough to open the locks,

 our truest selves step out

and we can be completely and honestly who we are;

we can be loved for who we are

and not for who we’re pretending to be.

This is about who we are at the core of our being. Such love will overspill in hospitality. Friends outside your marriage will also be able to be more honestly themselves in your presence if you have love with integrity of the sort that creates that safe space within your marriage.  If you try to create your own little paradise just for yourselves, you’re walking away from love. Love ... is not self-seeking.

But the marriage is a unique, exclusive relation­ship, the place where a man and a woman are fully naked with each other. Shedding your clothes is the easy bit, baring your soul can be a lot harder.

Naked in body and soul we are vulnerable. This is why God tells us that fullest intimacy belongs inside marriage. What difference does marriage make? Marriage is meant to help define that safe space in which you can be truly who you are without getting hurt.

How is marriage meant to do that? Through the vows you make to each other in public. In effect, you commit to being a soul mate. This is the critical point. Being soul mates is not about perfect chemistry between two people, it is not about always being on the same wavelength, about feeling and thinking the same, pursuing the same goals.

Being a soul mate is about commitment.

·         I am there for you – whatever life will throw up.

·         I am for you – whoever you truly are.

I wish someone had told me more clearly when I got married that in ten years time I would be married to a different person.

I am now more than twice the age I was when I got married. The man to whom my wife is married today is not the same who looked at her adoringly in 1992.  And it’s not just the grey hairs...My wife, too, has changed – a great deal.

The thing is, if you believe that today you marry the perfect person, any change in that person is going to be a threat. And if you were to believe that being soul mates is about being perfect for each other, then you may well no longer think of your spouse as a soul mate when they change.

Then the critical question for true love will not be “Is my partner still my soul mate?” but “Am I still a soul mate, a safe space? Do I live by the promises I have made?

Will I actively pursue peace, even when things are not perfect?

Love never fails. This is both a challenge and a promise.

We are not called to be perfectionists, we are called to be perfect. Perfectionists try to make things perfect. But it is not the wedding day that has to be perfect or the time when you have children, it is you who have to be perfect.

Be perfect, as your heavenly Father is perfect, says Jesus in his famous Sermon of the Mount (Matthew 5:48).

What he means is this: that our love must not be limited to those with whom we get on, those who are on our wavelength. Our love, that is our practical action in seeking the good of others, must embrace those from whom we are estranged and those who are hostile to us.

And I’m afraid there are likely occasions in a married life, when this becomes relevant – when your spouse feels like a stranger or even when you perceive them, rightly or wrongly, as hostile towards you. Then you must love. Be perfect, as your heavenly Father is perfect who makes his sun rise on the evil and on the good, and sends rain on the righteous and on the unrighteous (Matthew 5:45).

How do you find true love?

Be perfect, as your heavenly Father is perfect. Or, as we find it in the Gospel according to Luke (6:36), Be merciful, just as your Father is merciful.

God alone always protects, always trusts, always hopes, always perseveres - his Love never fails. This is why he came to us in Jesus Christ who is ‘The bridge across forever’.

He is the one who loved those who are his so much that he laid down his life for them. He loved us when we were still estranged from him, he loved us after we had messed up He loved us with a love that made us right again and ready to come into God’s presence, the presence of love.

As you grow to maturity in love for another, may you also come to know God’s love for you in ever deeper ways. Amen.

On Affirming Marriage as a Lifelong Union

Canon Dr Angus Ritchie, like others, claims that

To remarry divorcees and to conduct same-sex marriages both go against the Primates' Communique, which affirms that marriage must be “between a man and a woman in faithful, lifelong union.”

This implies that the Church of England’s practice, which allows remarriage of divorcees in some circumstances, and its official doctrine as expressed in Canon B 30

The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

Like others, Angus Ritchie is coy about spelling out what if anything is to be done about this contradiction. 

• Does it matter whether or not the Church acts in accordance with its beliefs?
• If so, should the Church  revert to its more rigorous practice of not allowing divorcees to get married in church?
• Or should the Church adapt doctrine to practice and abandon the doctrine that marriage is a lifelong union?

(Ritchie's general argument suggest to me that he would not be content with blatant contradiction between doctrine and practice and his endorsement of Jeffrey John's Permanent, Faithful, Stable suggests that he does not want to abandon the idea that marriage involves "faithful, lifelong union" but I am not aware of any efforts on his part to revert to a less liberal marriage practice in relation to divorcees.)

The claim that the practice of remarriage of divorcees is incompatible with the view that marriage is a lifelong union is presented as self-evident. But it can hardly be said to be self-evident. Why?

Because for at least one and a half millennia the Eastern Churches strongly affirmed that marriage is a lifelong union, while allowing for the possibility (and permissibility in some circumstances) of divorce with right of remarriage, appealing to Origen and Basil among others.

Because even within the Western Church this was rarely undisputed. There was a period of about 400 years from the Decretum of Gratian onwards during which (Christian!) marriage was held to be indissoluble without much contradiction but the issue was re-opened during the Reformation period. The Reformers abandoned the principle of absolute indissolubility for theological and pastoral reasons and “believed that in doing so, they were recalling the Church to the Scriptural teaching on marriage and divorce.” (Atkinson)*

Because in spite of the fact that the Church of England adopted the most stringent practice in all of Christendom, as far as mainstream churches are concerned anyway, a division of opinion on this matter has been characteristic of Anglican history.

All are (were?) agreed that God’s will for marriage is for it to be a permanent and lifelong union. The debate concerns whether the claim that marriage must be “between a man and a woman in faithful, lifelong union” expresses God’s design which can however be broken or whether a valid marriage once entered into on these terms is a “lifelong union” in the sense that it can ever be broken in God’s sight, whatever the civil authorities declare.

The claim that remarriage of divorcees invariably goes against the view that marriage is a lifelong union seems to presumes not only the view usually attributed to the Roman Catholic Church that sacramental marriage forms a bond which is only severed at death but also extends this principle to all marriages, whether they involve Christians or not. (See here a statement on why marriage that involves someone who is not baptised can be fully valid and even conducted in church without being sacramental according to Roman Catholic church law.)

In short, the assumption behind the claim that remarriage of divorcees goes against an affirmation that marriage must be “between a man and a woman in faithful, lifelong union” is highly controversial. To present the claim as self-evident betrays either an astonishing ignorance of other Christian views on the matter or a breathtakingly arrogant confidence that other views can be dismissed without even being mentioned.

An incumbent within the Church of England should not remain in such ignorance. For the benefit of anyone needing a crash-course in the discussion preceding the change in practice within the Church of England I have excerpted David Atkinson’s To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979) in notes from chapter 1 (areas of disagreement), chapter 2 (historical sketch), chapter 3 (marriage as covenant), chapter 4 (background and biblical evidence), chapter 5 here (principles for a Christian view of divorce) and here (applications of these principles), and chapter 6 (the pastoral problem of divorce and remarriage). A more recent, very learned but not Anglican discussion can be found at http://www.divorce-remarriage.com/.

Quick summary:

(1) Some believe that no (Christian) marriage ever comes to an end in this life. This is the position usually identified with the Roman Catholic Church.
(2) Some believe that there are two ways in which a marriage can end, through death or through sin. This is the position of the Orthodox churches and of the Protestant Reformers.
(3) Some believe that there are many which in a marriage can end other than death and sin. This seems to be the most widespread view in Western society outside the church.

The phrase "lifelong union" means different things to different people.

• For those affirming (1) it describes an inescapable fact about marriage. 
• For those affirming (2) it says something about what marriage intrinsically is according to God's design which is however breakable, a bit like saying a house is a space with walls and roof does not imply that the roof cannot fall down.
• For those affirming 3) the phrase expresses at best an aspiration rather than something that marriage intrinsically is.

*Note Tudor Church Reform: The Henrician Canons of 1535 and the Reformatio Legum Ecclesiasticarum (Boydell Press, 2000)

To Have and to Hold: Divorce and Remarriage, Pastoralia

The final chapter of David Atkinson’s To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979) explores the pastoral problems of divorce and remarriage. See previous notes from chapter 1 (areas of disagreement), chapter 2 (historical sketch), chapter 3 (marriage as covenant), chapter 4 (background and biblical evidence), chapter 5 here (principles for a Christian view of divorce) and here (applications of these principles).

Atkinson notes that “divorce is often a symptom of a far deeper problem in contemporary society – for Christians as for others – than simply the personal failure of a particular couple within their marriage relationship” (p. 181) The problem is not addressed by simply making divorce as difficult as possible. “The pastoral problem for the Church...is how to foster and encourage the personal qualities which make for covenant-faithfulness and commitment, even within the pressures of contemporary society.” (p. 183)

“As Michael Pollitt rightly comments: ‘education for and within marriage is a much more urgent matter than the question of the remarriage of divorced people.’” (p. 184) Furthermore, without dismissing the role of other agencies, “it is the duty of the Church to be an agent of reconciliation” where there is a threat to a marriage. (p. 186) “Whatever the practical steps needed, the Church has a duty to make itself known, and inspire confidence in its value, as the agency within which the reconciling grace of God can become a reality in the strained relationships of marriage breakdown. And it must work towards establishing as a regular procedure, the use of that agency as a first resort by married couples at times of marital distress.” (p. 187)

When marriages are broken: “For too long the primary stance of the Church to people who have been divorced has been one of condemnation or rejection...The Christian community needs to learn how to express compassion towards the divorced person as ‘victim’ [not only agent of divorce].” (p. 188)

“Part of the pastoral question for the Church is to ask how best it can be an agency of support and acceptance to the victims of divorce. And the second pastoral question is how best the Church can aid the divorced person, and his or her family, in finding ‘the Father’s will’ for their future.” (p. 188) Atkinson elaborates this in terms of guilt and feelings of guilt, receiving and extending forgiveness, and “for some, but surely not all, the covenanted obligation of sexual exclusiveness may lead them to view their future life as divorcee as a calling to celibacy” (p. 189).

“The moral question of the propriety of repeating lifelong vows is not as central as some argue.” (p. 189) While failure to uphold a vow reduces one’s moral credibility, it does not preclude the genuine possibility to make another life-long vow with utter sincerity.

“Whereas, therefore, the moral question concerning the right of remarriage may be fairly clear, the pastoral question as to the Church’s role in such remarriage, in particular whether or not it should give its blessing to any particular remarriage, is much more complex. The Church has other needs to consider than only those of the couple concerned; it is here that the tension between the Church’s prophetic and pastoral callings can be most acute.” (p. 190)

“The practice of refusing to marry any divorced person with the Church’s blessing seems unfortunately to witness only to the fact that Church law must always come before personal need. And yet, of course, indiscriminate remarriage on demand would seem to speak of a God of cheap grace who is blind to sin. If the Church is to give its blessing to some who seek remarriage after divorce, it needs first to be sure that it is pastorally possible to operate a consistent, fair and adequate discrimination...The only feasible criteria on which the Church can decide whether or not it is appropriate to give its blessing concern not degrees of guilt, but present attitude.” (p. 191)

“The Church’s blessing for any marriage should be reserved only for those who share its view of marriage, and the condition (with respect to the couple) on which the Church’s blessing on second marriage should be decided, is penitence for past sin and a genuine desire to seek God’s grace for a new marriage which accords with his pattern.” (p. 191)

After exploring three options, Atkinson concludes: “Assuming that after pastoral consultation, the parish priest and the couple believe in conscience that it is appropriate to have a church service for their marriage – and, to aid the priest in his decision, a diocesan panel may well be a helpful advisory aid – it would appear that neither the Marriage Service as it stands, nor a Service of Blessing following civil marriage, gives adequate witness to the view that God’s will for marriage is for permanence, that divorce is sin, but that sin can be forgiven. The most satisfactory option appears to be a procedure which combines adequate pastoral preparation with a liturgical service which itself gives appropriate witness to the Church’s prophetic and pastoral roles. A form of service is needed, in which the marriage itself is included, which can act in a discriminatory way by expressing both God’s will for marriage and penitence for the sin of divorce. If both such facts are publicly declared in the liturgy itself, the important distinctions in the Church’s witness between first and second marriages can be maintained.” (p. 194)

To Have and to Hold: Divorce and Remarriage, Applications

In the fifth chapter of To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979), David Atkinson articulates six principles “as basis for a Christian view of divorce in our contemporary society.” (p. 143, elaborated upon on the following pages)

“In attempting to apply these principles to our contemporary situation, three particular issues call for further comment.” (p. 151)

(a) Divorce is a moral act, not the result of ‘misfortune’

Atkinson critiques the Root Report, Marriage, Divorce and the Church (SPCK, 1972). “In contrast to the Eastern Orthodox insistence that the ‘permission for divorce in no way denies the tragic and sinful nature of every marriage breakdown’ [citing the Report, p. 121], the Root report (and indeed much of the way ‘irretrievable breakdown’ is currently understood) appears to transfer all question of blame for divorce away from the partners and to the ‘marriage’ as though (as D. Field comments) ‘the institution of marriage can be made into some kind of third party scapegoat on which all guilt can be laid’.” (p. 152)

He adds the observations that covenant breaches can be serious or relatively trivial and that “persistent and unrepentant sin is one thing; the action which, though of itself not morally good may none the less be right in the circumstances (like bearing arms in war), is quite another.” (p. 153).

This means that “although legally and socially in institutional terms all ‘divorcees’ are identical in that they were once married but are married no longer (and indeed the Church needs to recognize all civil decrees, even those granted on what from a theological standpoint it may regard as trivial grounds, as de facto divorces), in theological and pastoral terms this identity of ‘divorcees’ is not adequate.” (p. 153)

(b) Divorce as the ‘lesser evil’

“To initiate civil divorce procedure as the ‘lesser evil’ may sometimes be a responsible choice, but only with the recognition of sin, with sorrow and repentance.” (from the Summary, p. 174)

(c) Divorce: the legal procedures

“The legal procedures of the 1969 legislation in this country do not seem to fulfil the intentions of the authors of the Anglican Report Putting Asunder (1966) on which (largely) they were based. The present legal situation and court procedures are in fact making divorce easier and the maintenance of marriage harder.” (from the Summary, p. 174)

The issue of nullity is discussed on pp. 162-171. “Although some are urging the Church of England to follow the Church of Rome in exploring the possibilities of annulment in some cases of marital breakdown, it is sounder theologically and clearer in practice to recognize divorce, and to require the handling of even those ‘marriages’ which theologically may be deemed nullities to be the responsibility of civil courts.” (p. 175).

“Finally, what about the moral issues involved in the question of remarriage after divorce?

The possibility, indeed likelihood, of remarriage after divorce is presupposed in both Old and New Testaments, although, as we have seen, a second marriage falls under the cloud of the broken covenant of the first.” (p. 171)

“Our view is that it is not only remarriage which closes the door to all possibility of reconciliation and renewal. When that door has finally been shut by a determination of the will of either partner, there can be a freedom to remarry. But only if the door has been shut. Any children of the first marriage (almost invariably the chief casualties of divorce) are also of paramount importance, and the fulfilment of outstanding covenant obligations of parenthood towards them is another of the moral issues affecting the decision concerning remarriage.” (p. 172)

Atkinson also notes the importance of exploring and, if need be, addressing pastorally and maybe therapeutically “the question of personal ability to make and sustain committed relationships” (p. 172). Furthermore, one would need to judge “that the overall personal good of remarriage in a particular case would justify the threat that a second union would make to the social institution of marriage.” (p. 173).

See also notes from chapter 1 (areas of disagreement), chapter 2 (historical sketch), chapter 3 (marriage as covenant), chapter 4 (background and biblical evidence), and chapter 6 (pastoral questions).

To Have and to Hold: Divorce and Remarriage, Principles

David Atkinson, in the fifth chapter of To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979), articulates six principles “as basis for a Christian view of divorce in our contemporary society.”

(a) In the teaching of Jesus we must reject any antithesis between an ‘ethic of law’ and an ‘ethic of disposition’: both belong together within ‘covenant ethics’.

(b) The ‘Father’s will’ for marriage has a general validity for all [people]. The ethical teaching of Jesus removes all limitation from the sphere of validity of divine law.

(c) The Messianic ‘gift of righteousness’ provides the possibility for the fulfilment of the Father’s will.

(d) We must be careful not to interpret the teaching of Jesus as a new law code by which the Father’s will is achieved.

(e) The New Testament speaks both of the Father’s will and of his concessions because of sin.

(f) We are not, therefore, to place the covenant ethic of the law of love which fulfils the Father’s will over against the juridical sphere of civil legislation.

Drawing these points together in the context of our discussion of divorce, therefore, we conclude that civil divorce legislation needs first to provide a context in which covenant love in the marriage relationship can flourish and be maintained: in which the harvest of the Spirit can grow (and therefore should provide sufficient barriers to easy divorce that divorce is never a first option, but always the tragic last resort); second, to provide for the maximising of support and aid in reconciliation for the hard times; and third, to regulate the ways in which marriage covenant may be terminated in line with the principles of order and justice.” (pp. 143-151)

Two further citations in the context of discussing the penultimate principle:

“By referring to creation (‘from the beginning it was not so’; Matt. 19:4; Mark 10:6), and by bringing divorce under the heading of the seventh commandment (Matt. 5:32), Jesus proclaims the Father’s will for marriage. By not rejecting the Mosaic ruling to regulate divorce, but regarding it as a concession because of ‘hardness of heart’ (Matt. 19:8), though none the less part of the law of God (the giving of a certificate was a ‘commandment’, Mark 10:5), and by his own words (‘Every one who divorces...’; ‘Let no man put asunder’), Jesus recognizes that the Father’s will may be thwarted by sin and that social regulation of divorce therefore becomes necessary.

                St Paul likewise distinguished between the will of God for permanence and the need for specific rulings if that will was not adhered to. The affirmation of the law of God for marriage cannot therefore be taken to imply that there is no place for legislation to regulate divorce within a sinful world.” (pp. 147-148)

“It has been the consistent view of theologians of the Reformed tradition (exemplified most clearly in Reformation times, perhaps, by Peter Martyr), that Christian thinking on the subject of divorce needs to hold two principles firmly together: the permanence of the marriage covenant in principle and divorce as a tragic, but real, exception. The essential moral force of Jesus’ affirmation of the will of God for marriage implies the following principles. First, that the permanence of marriage is not merely an ideal. Marriage is in fact a covenant in which permanence is not only possible, but indeed is part of the very meaning of what covenant is about. Secondly, divorce must therefore always be seen as sin or the result of sin, involving social evil as well as personal tragedy.” (p. 148)

A second set of notes from this chapter on the applications of these principles is here .See also notes from chapter 1 (areas of disagreement), chapter 2 (historical sketch), chapter 3 (marriage as covenant), chapter 4 (background and biblical evidence) and chapter 6 (pastoral questions).

To Have and to Hold: Marriage and Divorce

The summary of chapter 4 which examines the background and exegesis of the biblical material in David Atkinson, To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979) reads as follows:

1. The Pentateuchal laws on premarital intercourse, incest and adultery were framed to preserve the view that in marriage, a man and wife are united in what is intended to be an exclusive lifelong union.
2. The legislation of Deut. 24:1-4 is the recognition of a permission (not prescription) for divorce, and gives legal conditions designed to reduce hasty divorce and minimize cruelty to the divorced wife. It thus recognizes the fact of marriage breakdown, and acknowledges the need for societal legislation to regulate divorce.
3. Post-exilic writers reaffirm the divine intention for the permanence of marriage.
4. Divorce is never encouraged or commanded in the Old Testament.
5. The Synoptic divorce material reflects the Pharisaic dispute about the interpretation of the Pentateuchal legislation. In Jesus’ day, the death penalty for adultery was not enforced. Gentile readers under Roman law would, like Jews, have assumed that divorce following adultery was legally required.
6. In the Synoptic material, Jesus reaffirms the divine law for the permanence of marriage, and brings divorce-with-remarriage under the seventh commandment against adultery.
7. Matthew’s porneia clause (meaning ‘unlawful sexual intercourse’) are most satisfactorily seen as expounding the significance of Deut. 24 in the context of Jesus’ day, and as indicating the continuing need for societal legislation to regulate divorce because of ‘the hardness of men’s hearts’.
8. The primary emphasis in Jesus’ teaching, however, is that in the will of God for marriage divorce has no place, and to initiate the ‘putting away’ of one’s spouse infringes the commandment against adultery.
9. In the teaching of Paul, we find the same two emphases: the law of God for the permanence of marriage, and the recognition that there are circumstances [in] which it is important to legislate for exceptions.
10. Both Testaments indicate that when divorce occurs (however wrongly), right of remarriage is presupposed; in other words, when a marriage has been broken, divorce dissolves the marriage ‘bond’ and covenant; the Bible does not know legal separation without the possibility of remarriage.

See also notes from chapter 1, chapter 2, chapter 3, chapter 5 here and here, and chapter 6.

To Have and to Hold: The Marriage Covenant

Notes from David Atkinson, To Have and to Hold: The Marriage Covenant and the Discipline of Divorce (St James’s Place, London: Collins, 1979), see first post and notes from his historical sketch.

“The centre of the meaning of marriage (not what it is for, nor how it is made, but what it means) is the expression of a bond of moral troth (that is, covenant faithfulness) in which two people marry each other before God, and pledge to each other loyalty, trust, devotion and reliability.” (p. 85)

“Within a marriage covenant faithfulness will mean at least the following four things (following Smedes).”

• faithfulness to a vow
• faithfulness to a calling
• faithfulness to a person
• faithfulness to a relationship (pp. 85-87)

“If marriage is understood in covenant terms, then the possibility of divorce must be discussed as the possibility of breaking covenant. The covenant structure of marriage lends weight to the view, discussed earlier, that marriage is not a metaphysical status which cannot be destroyed; it is rather a moral commitment [to a permanent relationship] which should be honoured.” (p. 91)

“To understand divorce as a moral (rather than a metaphysical) question, however, allows us to consider whether and in what circumstances such a moral obligation as is undertaken in marriage may be overridden by other moral duties, and whether and in what circumstances, divorce may be considered the lesser evil.” (p. 92)

I have written up further notes from chapter 4 (background and biblical evidence), chapter 5 here (principles for a Christian view of divorce) and here (applications of these principles), and chapter 6 (pastoral questions).

Marriage, Sex and the Government

Christopher C. Roberts on Wendell Berry's Marriage Reversal:

Consider: If marriage is grounded in the procreative potential of sexual difference, then it is grounded in something prior to the human will, and therefore prior to positive law. If marriage is the way we humanize and acculturate mammalian mating, then marriage has a rationale with which government interacts but which government does not invent.

By contrast, if marriage is grounded merely in legislative fiat”if government invents rather than recognizes marriage”then all marriages, heterosexual and otherwise, are premised on political largesse. When a government purports that the form of marriage is something it legislates rather than discerns or inherits, then that government is in everybody’s bedroom. In such a society, you are married only if Leviathan says you are.

Is this a correct observation? The new legal definition of marriage not only makes the connection with mating and biology optional but also seems to affirm that, as far as the government is concerned, any link between marriage and sex is incidental. This argues against the conclusion "that government is in everybody's bedroom." 

Nevertheless Christopher C. Roberts may be right to wonder why a quasi-libertarian like Wendell Berry should welcome government involvement in the making of marriages now that this has become quite unnecessary. 

The rightful allocation of children to responsible adults can happen via birth certificates and children's identity cards (parent 1, parent 2, maybe parent 3 - not all places need to be taken). There would be no need to specify the relationship the adults have with each other or the child, thus guarding against prejudice in favour of mixed-sex or committed relationships.

Couples can enter into open-ended (until further notice) committed partnerships with legal and financial implications which the state can recognise and regulate by way of civil partnerships which could be same-sex or mixed-sex and need not discriminate against siblings and other close relatives.

There is no need on this scheme for the government to have any interest in bedrooms, maybe except for taxing empty ones. The state could limit its interest in sex to enforcing the two rules on which most people agree: sex must be consensual and must not involve children.

Different Understandings of Marriage

The Church of England's understanding of marriage is defined in Canon B30.

The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

In addition, B31 specifies impediments which invalidate an alleged marriage. If one of the partners is below the age of 16 the purported marriage is void. The same applies if the two partners to the purported marriage are closely related to each other as defined by the table of kindred and affinity published with this canon. B32 specifies "certain impediments to the solemnization of matrimony", presumably distinguishing these from "impediments to marriage" itself (B31) which suggests to me that the minister who contravenes B31 may face consequences but the marriage would not be void.

This understanding obviously differs vastly from the understanding of marriage held by any who are prepared to contemplate human-animal marriage-like arrangements. But it also differs to a greater or lesser extent from the understanding of those who

• allow not only for the betrothal of minors but for actual marriages involving children, e.g. in Ethiopia, Niger, Mali, Bangladesh, Pakistan, Nepal and other places, including some provinces in Canada, if the bride is with child and written parental permission is given
• allow for the marriage, e.g., between an aunt and her nephew which is apparently the case in Austria, France, Argentina, Brazil and Australia (see avunculate marriage)
• allow for a man or woman to enter into more than one concurrent marriage, e.g. in Egypt, Saudi Arabia, Somalia and other places
• allow marriage-like arrangements between more than two people (although practised, such group marriages do not seem to be legally recognised anywhere)

 The Church of England's understanding of marriage differs also from the understanding of those who

• deny that marriage is designed to be permanent and lifelong*
• deny that marriage requires a complementarity of sexes
• deny that marriage demands sexual exclusivity
• deny the desirability of linking procreation with marriage

*All Christian churches agree that marriages are for life but there is disagreement as to whether this means that marriages should not be broken (the Eastern Orthodox position) or cannot be broken (the Roman Catholic position). The position of the Church of England agrees with the Eastern Orthodox rather than Roman Catholic view but there is disagreement as to whether this was its historic view.

 The Church of England's understanding of marriage differs also from the understanding of those who

• enter marriage with the hope and plan that they will not have children
• enter marriage with the intention of refusing sexual intercourse
• enter marriage without the aim of caring for one another
• enter marriage with prenuptial agreements

Given the increasing divergence between the Church's understanding of marriage and the understanding of marriage held in British society at large, paragraph 3 of Canon B30 has increased in importance:

It shall be the duty of the minister, when application is made to him for matrimony to be solemnized in the church of which he is the minister, to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth, and the need of God’s grace in order that they may discharge aright their obligations as married persons.

Error in the Bishops Guidance on Same Sex Marriages

There is a lot of excitement about an (alleged or apparent or possible or real) error in the House of Bishops Pastoral Guidance on Same Sex Marriage (on which I have reflected here). A number of academics have now written to the House of Bishop. Among them the Bishop of Buckingham who reproduces the letter on his blog. 

The offending statement is this

There will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.

Not so, the academics point out:

This is inaccurate. Civil law and church teaching have diverged before, on at least two occasions. The first was in relation to the marriage to a deceased wife's sister, the second in relation to the remarriage of divorcees.

The letter does not actually tell us why the divergence of church teaching and civil law in these two cases is thought to affect "the general understanding and definition of marriage" but points instead to a summary by one of the signatories, Scot Peterson, of the "robust discussion of this topic" in recent days and stresses that

We are all in agreement that the statement in the Bishops Guidance is mistaken and misleading.

Not only that. It seems to these academics that the error "forms an important part of the case which is being made" which is why they tried to resolve this with "Mr Arora and Mr Fittall" [Revd Arun Arora, Director of Communication, and Mr William Fittall, Secretary to the House of Bishops] but these attempts "have failed."

There is growing concern amongst the academic community about the situation.

Some of these academics "are anxious to improve channels of communication with the Church" in the hope that their "research and scholarship can be used constructively."

This is maybe by way of contrast to the response they received from William Fittall who had the audacity to disagree with their reading of the situation.

Bernard Randall suggests in a comment thread at TA that while the prohibition of incest can be considered part of the general definition of marriage, the question what constitutes incest is not:

the Deceased Wife’s Sister Marriage Act changed the definition of incest, to remove DWS from the forbidden list. Incest changed, not marriage.

He also suggests that what allowing for a second marriage changed is not so much the definition of marriage but the definition of adultery but accepts that this may come down to a judgement call. What is noteworthy about the academics' letter is that they do not allow for the possibility of disagreement on this. They refuse point blank to allow the Bishops to distinguish between diverging understandings of marriage at the margins and at the heart of what constitutes marriage.They may have a good case for their reading but is it strong enough to silence the other side with claims of historical blunders?

In effect, the letter-writing academics argue that each divergence in law, however slight, reflects an essentially different understanding of marriage, while the House of Bishops' statement worked from the assumption that  any divergence which did not require a re-writing of the definition of marriage as found in Canon B30 is not one which affects "the general understanding and definition of marriage". The use of the word "general" rather than "legal" in the guidance suggests to me at the very least that the legalistic approach of the academics is not the only defensible.

The  Deceased Wife's Sister Marriage Act never came close to touching Canon B30 although it affects Canon B31. Allowing for second marriage while the partner to the first marriage is still alive left Canon Law itself unchanged. There may be an argument as to whether or not it required a re-interpretation of Canon B30. Maybe surprisingly the academics appeal to Princess Margaret for the view that the Church of England had always considered marriage indissoluble rather than to the Archbishop at the time who has written on Marriage and Divorce (see excerpts here) and seems to be closer to the view that the life-long design of marriage means that a marriage should not be broken rather than cannot be broken.

See also Frank Cranmer on the Law & Religion UK site, An error in the House of Bishops' Guidance on Same Sex Marriage? - perhaps not.

Problems of Marriage and Divorce

I finally read Geoffrey Fisher's Problems of Marriage and Divorce. This was first published by SPCK in 1956, a year after Princess Margaret had called off her possible marriage to a divorced man in a decision warmly welcomed by Geoffrey Fisher as Archbishop of Canterbury (1945-1961). The booklet was reprinted in 1999 by Belmont House Publishing.

For the author, the church's witness to the nature of marriage as a life-long union of a man and a woman is of paramount importance. This would be compromised by conducting marriage services for divorcees whose former spouse is still alive. "The Church cannot corporately marry below Christ's standard. It stands before the world to proclaim that this is what Christ means marriage to be and what he says it is." (p19) In fact, he argues, this understanding of marriage is one that Christ brought into a Jewish and Roman world which had a less rigorous view of marriage.

Yet, recognising that the tragic end of a first marriage has sometimes been followed by an abundantly blessed second marriage, "I do not forbid good people who come to me for advice from embarking on a second marriage." (p19)

If they remarry, they will never again be able to bear a full and clear witness to our Lord's declaration of what marriage is. But the decision is on their conscience and they must decide whether this lasting spiritual loss is, in their judgement, outweighed by a call of God to seek spiritual gain in a second marriage. (p20)

Pastoral care in such cases is not to be exercised by offering a marriage service in church but neither should divorcees, whether remarried or not, be excommunicated.

This then is how it works - a strict rule as to what marriages the Church will celebrate that truth may not be blurred; a great readiness in pastoral dealings to bring such people back into fellowship with the Church and into the fellowship of the sacraments, that love may have its perfect work. (p23)

This presumes a practice of church discipline with regard to admission to Holy Communion which provides a context for training in discipleship.

In pastoral ministry what matters most is to discover the moral condition of the sinner. There may be striking evidence that the Holy Spirit has brought and is brining such people to a real discovery of Christ. There may indeed be evidence that the Holy Spirit is doing this through the marriage of two persons, one or both of whom may have been divorced. Are they to be told that they must disregard all their now accepted, and perhaps long-standing obligations to one another and to children, break up their home, and commit themselves to lifelong celibacy?

Of course not.

That would generally be not to help them, but to 'quench the spirit', and might even appear to frustrate the work of the Holy Spirit in and through their union. In such cases there must be a place for discretion, and our own Church provides one.

But one point depends on the other.

Only if the Church is bearing uncompromisingly its witness to the truth of marriage by refusing to marry divorced persons, can it without damage and without causing confusion use discretion in its pastoral work whereby it seeks to build up those, who can never again bear a full witness to Christ's conception of marriage, into a lowly, penitent, and really blessed life in the grace of God and the strength of the sacraments of the Church. (p27)