The news that the Presbyterian Church in NSW has asked the General Assembly of Australia to withdraw from the Marriage Act if marriage is redefined drew some reactions and criticisms. The one that was the most fully argued was  “Should Christian churches withdraw from marrying if same sex marriage is introduced?” by Neil Foster, from Newcastle University. He cast the considerations widely (referring to ‘many’ who takes this view). However his introduction refers to the recent decision of the NSWPC and the article quotes my Opinion piece in the Sydney Morning Herald. I thought I should offer a response to his concerns. Because Neil raised some serious questions, I’ve written a lengthy reply.

I response  in the same spirit as he offered his post. This is an important and interesting discussion among Christians who share the same classical Christian view of marriage and who want the best results for churches, society and gospel mission. (Neil Foster is a friend and I am tempted to refer to him by his first name in the following response. However, I hope it shows my respect to use the academic convention of referring to him by his last name.)

The Presbyterian Church of Australia has made no decision about withdrawing from the Marriage Act. The NSW Assembly has taken steps to have the national decision-making body (the General Assembly of Australia) consider the matter. I do not presume what the result of that consideration will be.

My response reviews Foster’s comments on the reasons for withdrawing from the Act, and then deals with the detrimental effects which he fears may flow from the Act. Finally, I’ll suggest that the differing responses to this proposal may, to some extent, be shaped by differences in political theology.

Reasons to withdraw
Foster lists two reasons for withdrawing from the Act, the “institutional change” argument and the “clergy religious freedom”.

In my mind, the “institutional change” argument is the key reason. Foster’s summary of it is fair, but I believe that it can be developed more fully.

The argument has three elements.

First, same-sex marriage, if it were introduced, would be a fundamental change to the nature of marriage as understood under Australian law and practiced in Australian society. It would be another step in a long process of redefinition. In Australian society people, especially couples, are assumed, even encouraged, to be sexually active before marriage. Couples live together and are recognised as de facto married without any public vows. The marriage relationship can be terminated without fault. Each of these means that marriage, as it is understood and practiced in Australia, is now very different from the Christian view of marriage.

Inclusion of same sex couples in marriage would be a further, and profound, step of redefinition. This is the conclusion of the The Doctrine Commission of the Sydney Diocese of the Anglican Church which states, “Changing the Federal Marriage Act to allow for ‘gay marriage’ will, in fact, turn marriage into a government and societal register of sexual friendships. This will necessarily change what marriage is, not simply add to it”. [1]Human Sexuality and the ‘Same Sex Marriage’ Debate A report of the Sydney Diocesan Doctrine Commission (October 2014), 43.

The second element in the argument is to raise the question about the positive reasons for continuing to participate in a system which operates with such a definition of marriage. It will, presumably, be logically and legally possible for Christian churches which hold to the classic view of marriage to continue solemnising marriages under a changed Act. The classic Christian view of marriage will still be included in the Marriage Act and the Family Law Act. Yet neither Act presumes that view.

When the English legal system first regulated marriage with the 1753 Marriage Act, the definition of marriage was virtually identical to that of the Church of England because Church of England marriage was the only recognised rite. (The Act also recognised marriages between Quakers and Jews as well as overseas marriages. It also explicitly excluded Scotland, a point to which I will return below).[2]I thank Daniel Hill from Liverpool University for pointing out this detail. See his quite different argument for ‘withdrawal’

So the premise for cooperation of the Church and State on this matter was a shared understanding. This is the legal arrangement inherited by Australia. Now that the shared understanding is lost, what is the rationale for continuing to cooperate?

The third element of the argument stems from the observation that if marriage is redefined to include same sex couples, then what the Act deems to be marriage will be a corruption of God’s good institution. The arguments for this are the arguments which Christians regularly give against the redefinition of marriage. The introduction of ‘same sex marriage’ will serve to further normalise gay relationships in the community. Those of us who hold to the classic Christian view of marriage will see that promoting this pattern of sexual relationships and marriage will be best for our society. Same sex marriage will also further legitimise the procurement of children for those relationships. These children will, by intention, be separated from at least one of their biological parents. For male same sex couples, this will involve some form of surrogacy. While these practices already occur, marriage redefinition will promote them. If we object to these results, we should not associate with the system which will promote them. Positively, we can show the classic Christian view of marriage far more clearly by not co-operating with the government in marriage.

At this point, Foster’s arguments about the possible practical benefits of remaining in the Marriage Act are relevant. He mentions “a number of important benefits”, though what he offers are all part of one benefit — the opportunity to connect with couples with no other church association and the evangelistic and pastoral opportunities which come from this. This benefit is not to be dismissed lightly. Yet the number of couples seeking church weddings is declining quickly. Between 1990 and 2010 the marriage rate in Australia dropped by about 20% but the number of couples having a religious wedding dropped by almost 60%. By 2013, 72.5% of marriages in Australia were conducted by a civil celebrant. Anecdotally, several Presbyterian ministers have told me that in the last few years wedding inquires from non-Christian couples have stopped.

What is more, having withdrawn from the Act the church could still conduct a church wedding for any couple which sought one, since membership of the church and profession of faith would not be conditions for having a church marriage. We solemnise marriages now because marriage is a creation ordinance for all people. On this basis, we would continue to offer church marriages to non-Christian couples. Couples who wanted to make a connection with a church at this important point in life would still be able to do so.

If the “institutional change” argument is persuasive, then the possible loss of a benefits is too minor to outweigh a conclusion arrived on important principles.

The “clergy religious freedom” argument is not one I have mounted. It is almost certain that if the Marriage Act is amended it will include protections of freedom for ministers whose refuse on religious grounds to solemnise a marriage between a same sex couple. (New Zealand and UK legislation provide for this). Australia may well end up with some of the most robust protections. As Foster notes, operating outside the Act may expose ministers and churches to discrimination actions. This is a risk we should be willing to take, if we are convinced on other grounds that we should withdraw.

The model of withdrawal
More substantially, Foster raises questions about the ‘model of withdrawal’.

He is right to say that there is no clear model yet proposed. Even in the Presbyterian Church, which has advanced this idea further than any other body in Australia of which I am aware, we have not yet developed a detailed alternative proposal. This is largely because we had to discover if there was a reasonable level of interest before we pursued a detailed proposal. (The decision of the NSW Assembly last week indicated that interest exits.) So, the model I will suggest here is not one which has any official standing in the Presbyterian Church.

This model is premised on a covenantal view of marriage, which is that a marriage is properly created by promises exchanged by a couple with witnesses.

Given a covenantal view, the church should teach that couples are required to have a ‘wedding’ (a public exchange of vows) before they consider themselves married and live together and commence a sexual relationship. The wedding could take two forms: it could be conducted by a celebrant recognised under the Marriage Act (including a minister from a denomination which remains registered under the Act); or it could be one conducted by a Presbyterian minister following the rites of the Presbyterian Church of Australia, but which is not recognised under the Marriage Act. For matters of pastoral care or church discipline, the church would recognise either form of marriage. If other denominations also withdraw from the Act, the church could recognise marriages conducted by these denominations as well.

I do not believe that we should recognise private marriages which are not solemnised by a recognised celebrant — either by a minister or a civil celebrant. There is an argument that these are legitimate Christian marriages and private marriages were held to be so in Christian tradition until into the medieval period. [3]This view is reflected in the teaching of Aquinas  that “the sufficient cause of matrimony is consent expressed in words of the present”, (that is a promise about present intention, rather than future intention). So, he concludes “whether this be done in public or in private the result is a marriage”; ST III, Suppl. Q. 45, Art. 5. The Fourth Lateran Council in 1215 ruled that marriages should be celebrated in church, but still recognised private or secret marriages. The covenantal view is now usually traced to Calvin who “was the first to develop a detailed covenant model of marriage”, J. Witte, J.A. Nichols, “More that a mere contract: marriage as contract and covenant in law and theology”. The Council of Trent (1548-63) then determined that a marriage required the publication of banns in the parish church, the priest’s blessing, two witnesses, and registration in the parish register.

It is unwise to give them church recognition. (There is a far longer set of arguments which can be given against private marriages, but I do not think they need to be set out here).

A couple seeking a church marriage would have two options.

The first option is that they could have civil marriage service (a registry marriage ceremony costs about $400 in NSW), followed by a church wedding. As Foster points out, the Marriage Act already allows for this  (though under fairly cumbersome conditions). For reasons I will set out below, this may be the process which the Church should recommend.

This is the pattern which is followed by most jurisdictions in continental Europe and it may be that changes to the Marriage Act could make it easier in Australia as well.

Why would a couple seek a ‘church marriage’ as well as civil marriage? The reasons may partly be cultural and sentimental (which are not to be dismissed). The theological reasons are that all promises are made before God, and in the case of the solemn vows of marriage, it is appropriate to acknowledge this by exchanging them in a religious service; also the service shows that the couple seeks God’s direction and  blessing on their marriage. (These reasons are applicable to a non-Christian couple, even if they do not articulate them). For a Christian couple, the further reason is that their congregation is an important part of the community which witnesses their vows and will be affected (for the good, we hope) by their marriage.

The second option, rather than having a civil marriage, is that a couple chooses to only have a church marriage. Foster does not deal directly with this in the section considering the model of withdrawal, but when he raises detriments of withdrawal he refers to “the possibility for confusion among persons who had been through ceremonies at a church, as to whether they were married or not”. This confusion could foreseeably arise only if a couple did not have a civil marriage, so Foster includes this option by implication. (I will argue below the ‘detriments’ of which he warns are not nearly as dire as he suggests).

The Marriage Act makes it an offence for a person who is not an authorised celebrant to purport to conduct a marriage. It would be important, then, that any minister who conducted a form of marriage service outside the Act clearly identify the nature of the service and its (non) relation to the Act. This is not a difficult process. Already in Australia authorised celebrants conduct ‘marriages’ for same-sex couples and are briefed about how these should be presented so as not to contravene the Act. It will not be difficult to set this out for ministers.

If the Presbyterian Church were to adopt this model, then it would not be difficult to develop a simple set of regulations which would be part of the church code. These would be based on the biblical view of marriage as summarised by Westminster Confession, Chapter XXIV.

The alleged detriments
Foster’s major concerns are about the implications which he fears flow from this kind of proposal.

He asks how churches will deal with the issues which flow from marriage breakdown and states that “presumably if it [the Church] had separated itself from the “civil marriage” system, then it could not simply rely on “civil divorce”.

The assumption here is incorrect. In Australian Law the end of marriage relationships is covered by the Family Law Act, and this Act treats de facto married couples in the same way as couples married under the Marriage Act. (There are some minor differences about timing, which I note below). If a couple with a church marriage only were to end their marriage, they would be dealt with under the Family Law Act as being in a de facto marriage. So they would still be able to access the system which benefits from “the many and varied issues that our legal system has wrestled with for centuries in dealing with the status of marriage”. There would be no need for a Church to provide a ‘Church Divorce Court’.

I admit that the idea of Christian couples being in de facto marriages is, initially, a startling suggestion for those of us who have been used to viewing de facto marriages as not marriages (it was once called ‘living in sin’!) The point to remember is that these marriages are only de facto under Australian law. In fact, a marriage is formed by a man and a woman, who are free to marry, making promises to each other before witnesses. So a couple who are married by a church marriage are properly married.

I mentioned some minor differences in the way a de facto marriage is considered under the Family Law Act. These differences have to do with timing. A couple who only have a church marriage may not receive full legal recognition of their marital status for two years. If they separated at this time, or one partner died, and there were no children, then they may not be recognised as married. These potential problems could be avoided by counselling couples to ensure that they have Wills, Powers of Attorney, Appointments of Enduring Guardian and ensure that each spouse is the declared beneficiary of the other for superannuation. Similarly, a legal change of name, if that is desired, can be organised quite easily. (Many people use a name different to their legal name in social settings, and that may be a simpler solution). If a couple were to move to another country they may find that a marriage under the Marriage Act was required to establish their marital status.

These differences are the main reason why we may recommend that couples have a civil ceremony first. They are not major detriments and are easily preventable, yet they may be enough to make the civil marriage the preferred approach. Nevertheless, we should recognise that if the church decides, on principle, that it will not continue involvement in the Marriage Act, some couples may also decide not to married under the Act because of their own conscience. (I do not think that the first conclusion requires the second, but I recognise that some couples will come to that conclusion). For these couples, at least, we should provide the possibility of only church marriage.

I assume that the above are the concerns which Foster refers to as “the possibility for confusion among persons who had been through ceremonies at a church, as to whether they were married or not”. Though I can think of two other concerns he may be raising.

It could be that Foster is concerned that without marriage under the Marriage Act, couples will be relatively less convinced of their marital status and less inclined to remain committed to the marriage and more inclined to separate. We know that de facto relationship are less stable than marriages. Would couples who had a church marriage, but were legally de facto follow a similar pattern?

The key reasons for the relative instability of cohabitating couples seem to be the level of commitment to the relationship and the ease of leaving it. It is widely recognised that cohabitation relationships are far less stable than marriages. The Australian data is reviewed in Hewitt and Baxter, “Relationship Dissolution” [4]B. Hewitt, J. Baxter, “Relationship Dissolution”, in Family Formation in 21st Century Australia, G. Heard and D. Arunachalam, eds, (Netherlands:Springer, 2015), 83-88. Similar findings in the US are discussed by K. B. Guzzo, “Trends in Cohabitation Outcomes: Compositional Changes and Engagement Among Never-Married Young Adults”. Fam Relat, 76 (2014):826–842; and J. Vespa, “Historical Trends in the Marital Intentions of One-Time and Serial Cohabitors” Journal of Marriage and Family, 76 (2014): 207–217. Hewitt and Baxter suggest two factors which contribute to the far higher instability of cohabiting, non-married couples — “lower levels of dedication to the relationship … and fewer structural constraints to ending the relationship” [5]B. Hewitt, J. Baxter, “Relationship Dissolution”, 87.

A wide-ranging study in the US suggests that the key factor in the difference in stability between the two forms of relationship arises from the ambiguity of cohabitation in contrast to the “security and mutual clarity between partners and within their social networks about exclusivity and a future” for married couples. [6]S. M. Stanley, G. K.Rhoades, H. J. Markman, “Sliding vs. Deciding: Inertia and the premarital cohabitation effect”. Family Relations, 55 (2006): 599f. See this the summary article in the Atlantic “In Relationships, Be Deliberate”.

The model I propose expects the same level of clarity and commitment from a couple having a church marriage as for marriage under the Act. Indeed, the deliberate choice to marry outside the Act in an explicitly Christian setting may indicate an even higher level of deliberation and commitment. There is certainly no reason to think that couples choosing only a church marriage would have lower levels of dedication to the relationship. The structural constraints on ending a relationship would be marginally less, since a couple would not have to seek a divorce under the Family Law Act. Most of the other constraints would apply, if a couple have followed their promises and built a shared life. Divorce is relatively easily accessed in Australia, and is considered and pursued relatively frequently by Christian couples.

I do not think that the legal status of marriage is a major driver for couples (especially Christian couples) to remain married and continue to invest in their relationship.

The other concern Foster may have is that the social standing of couples will be unclear. In the Church, we would teach that couples should consider themselves married after making vows. (This is consistent with what I take to be the current pattern which most ministers and churches advise, or require, of couples in a de facto marriage. That is, they should have a marriage service. Perhaps this is on the premise that only marriages recognised by the Marriage Act are true marriages. My view is there are better reasons for this advice — a marriage should be established by the exchange of promises before witnesses; and because others in the church community will likely be troubled by the status of a de facto marriage).

In wider society the concept of ‘marriage’ is so fluid that a couple who tell others that they are married will be accepted as such. No one will ask what form of marriage they have.

There will remain times when the Church has to make judgments about marital status, but that is already the case. Ministers regularly make a determination about marital status when they are asked to conduct a marriage in which one party, at least, has been previously married. Under Australian law, a valid divorce means that both parties are free to marry again. Many Christians hold that Jesus’ teaching in Matthew 19:9 and Paul’s teaching in 1 Corinthian 7:11,15 place restrictions on the freedom to remarry. Ministers vary greatly on how they apply these verses, but however the judgements vary, they involve questions of marital status.

Sessions and other church courts have to deal more formally with marital status in terms of qualification for office (or other leadership roles). In this area, the decisions under Australian Family Law are of little help. A couple may be still formally married, but are living apart and are unable or unwilling to reconcile. The question arises, should one or both of them be removed from leadership? In part this is a decision about their marital status. Even more commonly, Session and Presbyteries consider candidates for eldership and ministry who have remarried. Under Family Law, the candidates is validly married; but in most cases a church court will not accept this prima facie. Instead they will ask if the person if qualified for office, given that an elder or deacon is to be “the husband of one wife” (1 Tim 3:2, 12; Titus 1:6). Once more, the decisions vary, but the question is one of marital status.

An observation about political theology
There may be an underlying assumption about political theology which divides responses to the proposal to withdraw from the Marriage Act. I offer this as a suggestion. I do not know if it is significant in the thinking of Foster or others who do not warm to the proposal.

Presbyterian theology contains a two kingdom theology as an understanding of the relationship of Church and State. That is, each is seen as established by God and operating properly in their own sphere. Each is independent of the other, but are inter-connected and should co-operate. They are parallel institutions. The Westminster Confession, which expresses this theology (see ch XXIII, XXX, XXXI), was written in a period in which the connections and co-operation were far more extensive than in modern Australia. The key phrase is “The Lord Jesus, as king and head of His Church, has therein appointed a government, in the hand of Church officers, distinct from the civil magistrate” (WCF XXX.1). The classic exposition is given by  J. Bannerman, [7]The Church of Christ: A treatise on the nature, powers, ordinances, discipline and government of the Christian Church, (Edinburgh: T&T Clark, 1869), 95-185. He allows little room for gradations of co-operation, arguing that the State has a duty to recognise the Church (“the true religion and the true Church”) and in some circumstance to maintain and endow the Church. Without this recognition he assumes the church and State will be in in conflict: “The two societies stand so intimately and vitally related to each other, that the civil magistrate, if he does not ally himself to religion as a friend, will unavoidably be brought into conflict and collision with it as an enemy” (136).

The principle of this theology can still be applied. The church submits to the State where it is required to, unless that submission entails evil; and it co-operates with the State to the extent to which its teaching and ministry are not compromised. It can and should have its own integrity and makes its own judgements. Both Church and State have an interest in marriage. Where their views of marriage correspond, they can co-operate. When their views no longer correspond, the Church is not bound to co-operate. It can develop its own institutions of marriage which still run parallel with the State and interact with it at points.

On Presbyterian principles, the notion of the church withdrawing from co-operation with the State in one area is quite feasible. Other eccesiologies do not have quite the same political theology available to advance this proposal. I wonder if this might explain why a majority of the NSW Assembly were willing to entertain the proposal, when other Christians, with whom we share a great deal, find it more troubling.

It is interesting that Scottish marriage law was unique in Europe in retaining the view that marriage depends “primarily on mutual consent”. This may have had some religious motivation, though the motivations for the retention of the various forms of irregular marriage in Scottish law are not easy to interpret. [8]See E. Gordon, “Irregular Marriage: Myth and Reality”, Journal of Social History (2013):1–19.

Conclusion
There are other arguments offered against the proposal, and I am quite willing to discuss those. This response has focussed on the objections raised by Foster (with a final suggestion about political theology).

Foster’s assessment of our proposal is thoughtful but not, I think, fully informed. The argument for withdrawal is stronger than he portrays and the potential detriments are not nearly as serious as he suggests. It will not result in confusion for people about their marital status. Nothing in the proposal will deny couples access to Australian Family Law should their marriage come to an end. Even if couples choose to have only a church marriage, some careful planning and advice can ensure that they are at no practical disadvantage. The practical consequences are not on the scale which should stop consideration of the proposal by the General Assembly. The consideration should focus on the questions of principle, the “institutional change” argument, since the practical implementation is feasible.

References   [ + ]

1. Human Sexuality and the ‘Same Sex Marriage’ Debate A report of the Sydney Diocesan Doctrine Commission (October 2014), 43.
2. I thank Daniel Hill from Liverpool University for pointing out this detail. See his quite different argument for ‘withdrawal’
3. This view is reflected in the teaching of Aquinas  that “the sufficient cause of matrimony is consent expressed in words of the present”, (that is a promise about present intention, rather than future intention). So, he concludes “whether this be done in public or in private the result is a marriage”; ST III, Suppl. Q. 45, Art. 5. The Fourth Lateran Council in 1215 ruled that marriages should be celebrated in church, but still recognised private or secret marriages. The covenantal view is now usually traced to Calvin who “was the first to develop a detailed covenant model of marriage”, J. Witte, J.A. Nichols, “More that a mere contract: marriage as contract and covenant in law and theology”. The Council of Trent (1548-63) then determined that a marriage required the publication of banns in the parish church, the priest’s blessing, two witnesses, and registration in the parish register.
4. B. Hewitt, J. Baxter, “Relationship Dissolution”, in Family Formation in 21st Century Australia, G. Heard and D. Arunachalam, eds, (Netherlands:Springer, 2015), 83-88. Similar findings in the US are discussed by K. B. Guzzo, “Trends in Cohabitation Outcomes: Compositional Changes and Engagement Among Never-Married Young Adults”. Fam Relat, 76 (2014):826–842; and J. Vespa, “Historical Trends in the Marital Intentions of One-Time and Serial Cohabitors” Journal of Marriage and Family, 76 (2014): 207–217.
5. B. Hewitt, J. Baxter, “Relationship Dissolution”, 87
6. S. M. Stanley, G. K.Rhoades, H. J. Markman, “Sliding vs. Deciding: Inertia and the premarital cohabitation effect”. Family Relations, 55 (2006): 599f. See this the summary article in the Atlantic “In Relationships, Be Deliberate”.
7. The Church of Christ: A treatise on the nature, powers, ordinances, discipline and government of the Christian Church, (Edinburgh: T&T Clark, 1869), 95-185. He allows little room for gradations of co-operation, arguing that the State has a duty to recognise the Church (“the true religion and the true Church”) and in some circumstance to maintain and endow the Church. Without this recognition he assumes the church and State will be in in conflict: “The two societies stand so intimately and vitally related to each other, that the civil magistrate, if he does not ally himself to religion as a friend, will unavoidably be brought into conflict and collision with it as an enemy” (136).
8. See E. Gordon, “Irregular Marriage: Myth and Reality”, Journal of Social History (2013):1–19.