Since my undergraduate law days, I have been a huge fan of the power of the law to affirm the inherent dignity of people. One of the cool things about the passage of time, however, is that you can look back and test whether your intuitions were sound.
When it comes to constitutional law in our country, we have not only experienced the power of the law, but also its limits. I was reminded of this last week when I took part in a television debate about a case coming before the Constitutional Court.
Essentially the court will have to determine whether any constitutional rights of a lesbian pastor were infringed by her church, which dismissed her after it came to light that she had decided to get married even though her denomination had not yet taken a final view, apparently, on the status of same-sex marriage in the church.
The particular facts of the case are in dispute and complicated, and so the court might end up kicking for touch rather than tackling the central question head-on. That question is whether or not the church is allowed to behave, effectively, as a private members’ club with rules that normally would not be allowed in public institutions; rules such as, “Thou shalt not be lesbian and married, and still be eligible for leadership in the church”. No state institution can have such a rule. It is patently arbitrary and irrational discrimination against gay people.
One interesting constitutional question is whether the church is properly to be regarded as a public or private institution, legally speaking. Even then, private institutions aren’t allowed to have zero regard for constitutional law, and so another question will be whether rights to dignity and substantive equality override religious freedom in matters of church doctrine like the doctrinal issue at issue here.
A few years back in a debate against Bishop Gene Robinson in the Oxford Debate Union, I argued that although homophobia is obviously immoral, part of the point of living in a pluralistic society is that a church should be allowed the freedom to think my sexual orientation is immoral, and to bar me from becoming a bishop. In turn, the church has to live with me laughing at churchgoers having irrational beliefs about things not proven, but which they all believe exist.
Well, I think I was partly wrong. It is indeed the right of the church to make up peculiar rules and praxis that are central to its religious identity. But I was wrong to not prioritise in my head, and in my heart, the impact of homophobia in the church on gay people, both gay members of the various religious communities and those of us who are not believers. Hermeneutical freedom to decide church doctrine without state interference must not be an excuse to entrench harmful bigotry.
The social impact of church-sponsored homophobia across the world, and not just in favoured examples like Uganda, cannot be underestimated by anyone serious about eliminating injustices. And so in that debate with Bishop Robinson, I think an unhealthy dose of analytic philosophy and legal theory training blinded me to the immediacy of the impact of the church’s homophobia on the lives of millions.
But the limits of the law must be understood clearly. Even if this lesbian woman wins a case in the Constitutional Court, homophobia will continue unabated in the church. Just as black lesbian women get raped and assaulted on a daily basis despite lyrical case law asserting our rights to dignity and substantive equality as LGBTI members.
I’m not saying law doesn’t matter. That would be silly. It is administratively important for the state to declare straight and gay people to have equal entitlement to decent treatment. And the ability to assert your rights is a practical, not just a jurisprudential, instrument we can use, with other tools aimed at fighting discrimination.
But legal victories, as refreshingly progressive Pastor Michael Oliphant pointed out to me, can make us complacent about the importance of winning hearts and minds in our communities, and in our churches. Legal victories sound deceptively final. An ironically unhelpful, but inadvertent, consequence of a legal victory is that we think liberal jurisprudence will seep into every part of our society almost through osmosis. In fact, the battle for justice must be fought in a top-down and bottom-up manner.
I still think we should respect the right to religious freedom, of course. But the church must strive to live up to the moral demands of justice, which isn’t the same thing as merely behaving lawfully.