by Ephraim Radner
Rector, Church of the Ascension, Pueblo, Colorado
and Andrew Goddard
Tutor in Ethics, Wycliffe Hall, Oxford
The notes in the text are hyperlinked into the end notes; to return to the text, click on the end note number
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The Situation in Nigeria & Western Reactions
Ever since at least the 1998 Lambeth Conference, Western Anglicans have been aware that their African counterparts express a far more strongly negative view of homosexuality than they do. At that time, for instance, we witnessed the Nigerian Bishop Emmanuel Chukwuma's public attempt at "exorcising" Richard Kirker, leader of the Lesbian and Gay Christian Movement (LGCM) in the UK. Subsequent interviews documented at length Bishop Chukwuma's assertions that homosexuals were "going to hell" and his comparison of present-day gay activists in the church with the residents of Sodom and Gomorrah, among other similes.[1] Some of these reports were flagrant attempts at creating controversy and embarrassing different members of the debate itself. But contrasts involved in the debate, beyond the sensationalist elements, were nonetheless striking on several levels.
For some time, homosexual activity in Nigeria has been legally prohibited, with sanctions of up to 14 years imprisonment.[2] More recently, legislation was proposed in Nigeria that would ban same-sex blessing or marriage ceremonies, penalize those involved in them, and outlaw efforts to promote same-sex activity of any kind and through any means, with penalties of five years imprisonment.[3] This proposed legislation has been publicly upheld by the Nigerian Anglican Church, and personally defended by its Primate, Archbishop Peter Akinola. In the "Message to the Nation/Communiqué" of 25 February 2006, from the Church of Nigeria's Standing Committee, Archbishop Akinola wrote:
The Church commends the law-makers for their prompt reaction to outlaw same-sex relationships in Nigeria and calls for the bill to be passed since the idea expressed in the bill is the moral position of Nigerians regarding human sexuality.
Given the highly charged and divisive debate within the Anglican Communion regarding same-sex blessings and the ordination of sexually active homosexuals, the Nigerian legislation and its support by the Anglican Church there has received a good deal of publicity.[4] Many liberal Anglicans have attacked the proposals and the local church's support of them. They have also charged that conservative Anglicans around the world (and especially in America) have failed to confront the seriousness of this situation and, in their eagerness to make common cause with African Anglicans, have actually become complicit in supporting a movement that is grossly abusive of basic human rights. Conservative Anglican silence in the face of the Nigerian legislation is, they argue, tantamount to a dangerous and damning hypocrisy.
The Episcopal Bishop of Washington, for instance, made the following statement in a Washington Post Op-Ed piece (26 February 2006) entitled 'A Gospel of Intolerance':
"The archbishop's [Akinola's] support for this law [the Same Sex Marriage (Prohibition) Bill 2006] violates numerous Anglican Communion documents that call for a "listening process" involving gay Christians and their leaders. But his contempt for international agreements also extends to Articles 18-20 of the United Nations Universal Declaration on Human Rights, which articulates the rights to freedom of thought, conscience, religion, association and assembly. Surprisingly, few voices - Anglican or otherwise - have been raised in opposition to the archbishop. When I compare this silence with the cacophony that followed the Episcopal Church's decision to consecrate the Rt Rev Gene Robinson, a gay man who lives openly with his partner, as the bishop of New Hampshire, I am compelled to ask whether the global Christian community has lost not only its backbone but its moral bearings."[5]
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Have Anglicans failed?
Is this charge fair? In its first part, it probably is. The question of human rights and gay people, in a world riven by violence and the trampling of civil liberties, is morally too important and politically substantive to evade, especially as it finds itself exposed right in the middle of a major and historically critical theological debate within the Communion regarding sexuality. Many African nations where the Anglican Church is active, in fact, legally prohibit homosexual activity, and accompany conviction of such crimes with a range of sanctions that are often quite severe by Western standards. It seems not only odd, but scandalously irresponsible, that these political and humanitarian realities have not been confronted openly in the course of the present debates, despite pleas from many that this happen.[6]
The second part of the charge - that this failure to discuss sexuality and human rights among churches, including African ones, amounts to a moral complicity in abuse, as in Nigeria - seems difficult to uphold in its bare meaning. This is largely because the charge assumes the discussion's conclusion, that is, that the legal status of homosexuals in many African countries where the Church is active itself equates with abuse. And this kind of assumption is precisely what cannot be embraced at this stage. The issues of legal rights for gay people and the church's teaching and moral duties with respect to the state on this topic are complex, and certainly far from consensually resolved at this point, in the West as much as anywhere. It is not at all clear, for instance, what the theological value of a category called "homosexual" or "gay" might be, just as historically and biologically there is currently much dispute over the etiology and substantive reality of a "homosexual identity". In the Christian discussion of human "rights", furthermore, such rights are normally seen to adhere to a person qua human creature, not primarily to a person as a member of a human subgroup, however ordered. (Hence the Roman Catholic Church tends to speak of "persons" with "homosexual inclinations" rather than of "homosexuals" as a common type of human being.) Distinguishing something called "gay rights" is therefore highly problematic.
This is a fact that no doubt plays into the concerns of African churches where the secular elaboration of "group rights" threatens to dissect human personhood into unwieldy moral and political fragments. While there is a common sense meaning to the term "gay person" or "homosexual" that most of us both grasp and utilize - as will be done in this paper - such common usage masks a host of usually unexamined and unstable assumptions.[7] All the more reason, of course, that the Church, and in this case the Anglican churches, have a responsibility to engage the discussion carefully and honestly. If there is complicity on the churches' part in the failure to protect rights of homosexuals around the world, however we understand this category of personhood, it is one that embraces all sides, precisely because of the unwillingness of all to explore and expose the difficult terrain of moral order and the Gospel within the civil sphere.
It will seem repugnant to some, of course, that we might even raise a question about the conclusion regarding gay rights at this point in history. It needs, therefore, to be said here that the conclusion of this paper is that the Church ought to work to protect a range of civil liberties for gay people, and that the Nigerian Church's support of its nation's anti-gay legislation is wrong. However, the conclusion is not obvious in advance of a chain of arguments. These arguments have not been generally rehearsed in present debates and, even here, will be pursued only sketchily. Hence, the conclusion cannot be assumed at all, and does in fact need justification. Bishop Chane's "line", the "crossing" of which marks the passage from a legitimately contested approval of same-sex unions into the abuse of human rights is not at all well-defined and established.
Or is it?
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What has the Christian church said?
Some, like Bishop Chane cited above, might argue that something like 1998 Lambeth Resolution I.10 rules out the Church's support for anti-homosexual civil legislation a priori:
We commit ourselves to listen to the experience of homosexual persons and we wish to assure them that they are loved by God and that all baptised, believing and faithful persons, regardless of sexual orientation, are full members of the Body of Christ.
and
...while rejecting homosexual practice as incompatible with Scripture, [this Conference] calls on all our people to minister pastorally and sensitively to all irrespective of sexual orientation and to condemn irrational fear of homosexuals...
This resolution coheres with something like The Episcopal Church's 1976 General Convention resolution A069 that stated that
Homosexual persons are children of God who have a full and equal claim with all other persons upon the love, acceptance, and pastoral care of the Church.
It also can be said to fit with the official teaching of the Roman Catholic Church, for example that homosexual persons
must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided;[8]
and that with homosexual persons, as with others,
the intrinsic dignity of each person must always be respected in word, in action and in law.[9]
The Anglican Primates at Dromantine (2005) themselves said something in this vein, when they asserted that:
the victimisation or diminishment of human beings whose affections happen to be ordered towards people of the same sex is anathema to us.
But do convictions like this necessarily imply that homosexual activity or the promotion of gay sex ought to be protected by the civil law, and that churches should support such protective legislation? Obviously not. The Roman Catholic church's concurrent opposition to such legislation attests:
The proper reaction to crimes committed against homosexual persons should not be to claim that the homosexual condition is not disordered. When such a claim is made and when homosexual activity is consequently condoned, or when civil legislation is introduced to protect behavior to which no one has any conceivable right, neither the Church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase.[10]
Treating people like "children of God" leaves unresolved, without further argumentation, from a Christian perspective, the moral and civil status of their actions. These may, as we know (in a range of cases from sexual predation to drug possession) even be viewed as criminal for one reason or another. The critical issue lies in these "reasons", and the analysis of such reasoning cannot simply be bypassed.
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Understanding the Nigerian situation
What is the line of reasoning used by the Nigerian Church? Their claim, to stick to this one case as but the best publicized example that stands for many, is that homosexual sex is inherently immoral, something known on the basis of the Bible. Homosexual practice is therefore "evil":
The Church affirms our commitment to the total rejection of the evil of homosexuality which is a perversion of human dignity and encourages the National Assembly to ratify the Bill prohibiting the legality of homosexuality since it is incongruent with the teachings of the Bible, Quran and the basic African traditional values.[11]
At this point, we are not asking if homosexual sex is in fact "evil", only how such a conviction informs and ought to inform the Church's support of "anti-gay" civil legislation. It should be said that such a conviction and conclusion is also made by the Roman Catholic Church, as in this 2003 statement regarding the push for legalizing same-sex unions:
Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.[12]
And, it is argued, if homosexuality, in this or that embodiment, is "evil" or "sinful", its practice requires sanctions of one kind or another, in terms of some kind of non-permissive response (though there is, in the above statement, a difference drawn between "legalization" and "toleration" that deserves discussion, if not here).
The Nigerian Church, however, goes so far as to support civil sanctions even against those who would publicly discuss and organize over the rights to homosexual practice. This is on the basis that such discussion and organization would subvert the public order and moral cohesion of the society in which the Christian Church seeks to maintain an integral witness:
At the human and physical level, there is much moral decadence, encouragement of violence and lasciviousness by the screens, eroded family value and shameless immorality actively supported and promoted outside our shores by some government laws in the name of human rights and even encouraged by some religious groups in the corrupted name of love. (Lenten Letter, February 2006).
Hence the claim that concrete legal defences against the inroads of these corrosive influences is necessary. Before testing this claim, we should note that the general direction of this reasoning is not simply extraneous to an established context in human rights laws, especially in Africa. While the Universal Declaration of Human Rights (UDHR) spoke, in Article 16, of the fact that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State", the African [Banjul] Charter on Human and Peoples' Rights (1981) Article 18, elaborates yet further, by affirming that:
the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral [sic];
and
the State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
Concern for the protection of "the traditional African family" as a formative moral repository is one of the most potent motivations among African Christians for supporting anti-homosexual civil legislation. As Lawrence Vambe, a Shona journalist in exile from Zimbabwe, has written "the nature of gay people is one of the few subjects that unites all Africans. Family life is the bedrock of African society and homosexuality is seen by most Africans as a Western import that undermines our traditional values".[13]
In this light, it is obvious that one's approach to the parameters of "legal rights" for homosexuals will be influenced by the moral adjudication of homosexual sex within the larger society, a society in which the church both lives and whose life it nurtures.
In countries like the United States, this reality is actually acknowledged concretely in the various "exception" rulings that permit churches to limit employment opportunities (limits that would otherwise fall afoul of anti-discrimination laws) or that allow church-run adoption agencies to refuse placements within same-sex domestic arrangements. Some of these exceptions have been allowed on the basis of First Amendment rights granted to churches, behind which stands a legal realization that the perceived immorality or "evil" of certain practices - "perceived" from the vantage of certain religious commitments - demands that the state grant to the church the right to certain forms of communally-limited behavioural sanction. This right is logically bound up with the expression of a cohesive and coherent form of life.
In a larger society where there is a general consensus regarding the nature of sexual morality, as in Nigeria, it is certainly plausible that limits on certain forms of sexual behaviour - as well as on the advocacy of such behaviour - will prove legally coherent for the whole of that society, at least in theory. It is also plausible that the congruence of the Christian Church's own moral views with this larger social set of values will encourage churches to support such legal limitations.
The imposition of sanctions upon practices viewed as "evil" by Christians is therefore not in itself illogical. Or is it? Some Christians might argue, for instance, that punitive sanctions themselves, and the Church's support of them within a secular society, contradict basic elements of Jesus' own example, teaching, and sacrificial death, in which "mercy" predominates (Hosea 6:6, as quoted by Jesus in Matthew 9:13 and 12:7; Matthew 5:7). The Levitical penalty for homosexual actions is death (Leviticus 20:13), but few Christians would consider this kind of sanction applicable today (if really ever). Does not Jesus himself alter the very character of "sanction" in this regard, as he demonstrates in the case of the woman caught in adultery (Jn. 8:2-11)? "Neither do I condemn you." If the full penalty of the law's transgression is actually borne by Jesus himself, what parameters are left for the Church's formulation of punishment for crimes? Even the medieval Church understood its own evangelical order as prohibiting such sanctions, which is why criminals, even those guilty of more strictly religious offences, were handed over to the temporal powers for punishment.
Still, it is just this example that demonstrates the tension, and perhaps final asymmetry, in church-state relations over matters of crime and punishment. This is continually being resolved in varying ways. Adultery, for instance, has never been viewed, even by Jesus, as anything but illicit before God and worthy of hell (cf Matthew 5:27ff; see also Jesus' characterisation of adultery as "sin" in John 8:11). It is, clearly, deserving of at least a divine sanction. Most societies, even secular ones, continue to see adultery as bearing legal consequences (eg in establishing grounds for divorce, or determining child-custody decisions), and in Africa, especially in nations with Islamic legal traditions like Nigeria, adultery can even be a capital offence (even if sanctions are applied in a wildly unbalanced way). Churches certainly may use it as a reason for excommunication. Are churches to avoid concerning themselves with the civil aspects of adultery? It is hard to see quite how they could, although the exact way in which they should remains disputed.
This example is pertinent to the present debate. The modern notion that behaviour among "consenting adults" (eg adultery) demands permission, and at the least ought to forbid punishment (as seen in the overturning of anti-sodomy laws in some U.S. states), is, in fact, applied unevenly in practice. This can be seen in the case of drug use, possession, and sale. The arguments for maintaining legal limits and even punitive responses to drug use (even among "consenting" adults) are analogous to Nigerian justifications for anti-gay legislation: it protects people from the deleterious effects of their own immoral behaviour, protects others from it, and serves as a restraint upon the spread of such behaviour within the body politic. Although treating sexual encounters as a "controlled substance" may not be universally accepted, it is a plausible judgment and, in the Nigerian case, cannot be dismissed out of hand, even if it does not finally prove persuasive.
Indeed, as the case of the Roman Catholic Church's attitude to homosexuality and civil legislation shows, plausibility and practice remain ever in tension. We have seen above that a commitment to resist "unjust discrimination" against homosexuals in general does not translate, for the Catholic Church, into support for certain kinds of protective legislation. Indeed, it coheres in the Catholic view with the maintenance of certain kinds of discriminatory choices even within the civil sphere, with respect at least to "marriage", adoption, and more.
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The Church and Human Rights - Roman Catholic teaching and practice
Is there an actual framework that can distinguish "just" - because conformable to the law of God as it properly orders human society - from "unjust" discrimination here? In Pacem in Terris, the great 1963 Encyclical of John XXIII that brought the consideration of human rights fully into the theological centre of the Church's teaching, the matter of "personal rights" emerges in high profile. Based on the principle of the human "person's" fundamental and divinely-given dignity, these rights are carefully enumerated in a way that is congruent (if not always precisely) with secular standards such as the 1945 United Nations Universal Declaration of Human Rights (which is mentioned in laudatory way by Pope John in paragraphs 142-145).
These rights include the right to life and security, cultural and moral formation, freedom of worship according to personal conscience, freedom to choose one's "state of life" (married or single), various economic rights, freedom of association, freedom of movement, and rights to political participation and judicial protection. All of these rights, as well as some that might derive logically from them, are implicated in the question of legal limitations on homosexual practice. However, these rights are also articulated within the framework of a principle of the "common good" (cf paragraphs 53ff). This provides regulatory constraints upon individual action on the basis of mutual "duties" and so it is not possible simply to apply these rights directly to homosexual behaviour. Indeed, among the rights adumbrated by the Pope is the promotion of "the family, grounded on marriage freely contracted, monogamous and indissoluble". This is "considered the first and essential cell of human society" (16). Because of this, the family's health is a part of the "common good" the state is divinely bound to further. It is the duty of individuals within the state to contribute to this furthering: it follows that most careful provision must be made for the family both in economic and social matters as well as in those which are of a cultural and moral nature, all of which look to the strengthening of the family and helping it carry out its function.
The Church's support of civil limitations upon homosexual conduct, therefore, cannot (in this reading) be attributed to "discrimination". It derives, rather, from the calling and duties of a well-ordered society that supports the created purposes of human persons including marriage and family life.
At the same time, however, the Encyclical leaves open a number of challenging areas with respect to such "legitimate" discrimination. For instance, does the fundamental right to unimpeded "worship" of God according to the "sincere dictates" of the "conscience" (14) include those Christians, or other persons, who believe that God's "creation" of homosexual persons provides their sexual expression with a divine permission (and even blessing) and who argue for such on the basis of theological and, in some cases, Scriptural warrant (as they believe)? Does the exhortation made by the Pope to distinguish "error and the person who errs" (158) include therefore a demand to treat homosexuals in their person leniently, however one considers their behaviour and, at times, the ideology that supports and promotes it? Given that "the person who errs is always and above all a human being, and he retains in every case his dignity as a human person; and he must be always regarded and treated in accordance with this lofty dignity", a serious question is indeed raised here: according to the robust character of the particular language used, are homosexuals, however negatively one views their sexual practice, due the "personal rights" earlier identified with human "dignity", including the protection of their persons and the freedom to associate?
The fact that the Roman Catholic Church does not consistently stand against certain forms, within various nations, of legal and even punitive constraint imposed upon homosexual behaviour seems to indicate that there is as yet no fixed interpretation within the Catholic Church as to how such constraints relate to "fundamental" rights. As far as we know, for instance, the Roman Catholic Church has not publicly opposed the proposed Nigerian anti-homosexual legislation. On the other hand, both the language used in Catholic statements opposing "discrimination" against homosexuals and their normal place within Catholic discourse concerning fundamental human rights points in a clear direction: respect for the person and conscience of homosexual individuals that would preclude quite strictly the imposition of punitive measures that would cause them physical, economic, or deliberate psychological harm relative to the general rights enjoyed by the larger populace.
This direction of interpretation would seem, we believe, to clearly rule out physical punishment, imprisonment, harassment, and social ostracism. On these counts, the Nigerian legislation does not appear, even with the most generous reading of its sanctions, coherent with Catholic thoughts regarding human rights. After all, it is quite possible for the state to resist the recognition of same-sex partnerships, and thereby limit the legal benefits dependent upon such recognition - and for the Church to support such moves by the State - without violating fundamental rights as understood by the Catholic Church (obviously, pro-gay groups define fundamental rights in a different manner). It is even possible to maintain certain kinds of legal sanctions upon homosexual activity that are deemed restraining of its public practice, but that do not cross the line into harassment defined in a generally agreed-upon way.
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The Church and Human Rights - Anglican understandings
The case with the Anglican church is similar, if even somewhat more evident. By 1978, the Communion had adopted a fairly full definition of the church's commitment to "human rights", based on the inherent "dignity" of the human person as created in the "image of God". The text of the 1978 Lambeth Conference Resolution (3) on Human Rights is worth citing in full:
The Conference regards the matter of human rights and dignity as of capital and universal importance. We send forth the following message as expressing our convictions in Christ for the human family world-wide.
We deplore and condemn the evils of racism and tribalism, economic exploitation and social injustices, torture, detention without trial and the taking of human lives, as contrary to the teaching and example of our Lord in the Gospel. Man is made in the image of God and must not be exploited. In many parts of the world these evils are so rampant that they deter the development of a humane society. Therefore,
- we call on governments to uphold human dignity; to defend human rights, including the exercise of freedom of speech, movement, and worship in accordance with the United Nations Declaration of Human Rights; the right to be housed, freedom to work, the right to eat, the right to be educated; and to give human value and worth precedence over social and ethnic demarcations, regardless of sex, creed, or status;
- we thank God for those faithful Christians who individually and collectively witness to their faith and convictions in the face of persecution, torture and martyrdom; and for those who work for and advocate human rights and peace among all peoples; and we assure them of our prayers, as in penitence and hope we long to see the whole Church manifesting in its common life a genuine alternative to the acquisitiveness and division which surround it, and indeed penetrate it;
- we pledge our support for those organisations and agencies which have taken positive stands on human rights, and those which assist with refugee problems;
- we urge all Anglicans to seek positive ways of educating themselves about the liberation struggle of peoples in many parts of the world;
- finally we appeal to all Christians to lend their support to those who struggle for human freedom and who press forward in some places at great personal and corporate risk; we should not abandon them even if the struggle becomes violent. We are reminded that the ministry of the Church is to reveal the love of God by faithful proclamation of his Word, by sacrificial service, and by fervent prayers for his rule on earth.
We note here that "homosexuality" is not mentioned explicitly. As with Roman Catholic statements, there is much room thereby granted to placing limits upon homosexual behaviour in certain nations (according to communally accepted values) in ways that do not necessarily or logically contradict broader "fundamental" rights, that themselves are always defined by local demands for things like "public order" and the "common good". Even the quite explicit support by Lambeth of the United Nations UDHR (rather than the more nuanced Roman Catholic acceptance of this standard) does not alter this qualification. Unless, that is, one accepts the later 1994 ruling by the UN's Human Rights Committee that the reference to "sex" as a protected status refers also to "sexual orientation" and concomitant practices.[14] (This ruling, however, is by no means yet accepted universally as the normative interpretation of UDHR or International Covenant on Civil and Political Rights [ICCPR] texts.)
Lambeth 1978, however, went on in another resolution (Resolution 10) to speak more specifically of homosexuality:
While we reaffirm heterosexuality as the scriptural norm, we recognise the need for deep and dispassionate study of the question of homosexuality, which would take seriously both the teaching of Scripture and the results of scientific and medical research. The Church, recognising the need for pastoral concern for those who are homosexual, encourages dialogue with them. (We note with satisfaction that such studies are now proceeding in some member Churches of the Anglican Communion.)
This resolution, while it does not condemn legal restrictions on homosexual behavior, does point in a very clear direction: "deep and dispassionate study of the question of homosexuality", "pastoral concern" for homosexuals within this context, and "dialogue" with homosexuals. It is difficult to see how these commitments could possibly be carried out in a civil context in which gay people are being imprisoned for up to 15 years for the exercise of their sexual preferences, and in which the organizing of gay-identified groups is outlawed, also under threat of imprisonment.
In light of the larger commitment to fundamental human rights in Resolution 3, the conclusion regarding the Communion's attitude to homosexual "rights" can only be one that is coherent with that regarding the Roman Catholic Church's attitude: the church's commitment to the protection of the person of homosexuals, as well as the protection of the freedom of association and articulate expression of homosexuals, within the framework of public order.
Ten years later, at Lambeth 1988 (Resolution 64) the Anglican bishops reiterated earlier commitments in just these terms to rights for the homosexual "person":
[This Conference] calls each province to reassess, in the light of such study and because of our concern for human rights, its care for and attitude towards persons of homosexual orientation.
The Windsor Report, paragraph 146, cites this "call" as a basic principle of its exhortation regarding homosexual rights:
Moreover, any demonising of homosexual persons, or their ill treatment, is totally against Christian charity and basic principles of pastoral care. We urge provinces to be pro-active in support of the call of Lambeth Resolution 64 (1988) for them to 'reassess, in the light of study and because of our concern for human rights, its care for and attitude toward persons of homosexual orientation'.
The addition of phrases concerning the anti-Christian character of "demonisation" and "ill-treatment" of homosexuals indicates quite clearly the direction in which the category of "rights" for homosexuals is to be construed, even if it does not define it concretely.
Finally, the Primates' 2005 Communiqué (paragraph 6, cited above), heightens the moral stakes at issue in this matter, by using the formal ecclesial disciplinary term of "anathema" to describe the violation of these rights, placed within the language, as we have seen, of human personhood, rather than simply defined in terms of sanctioned behaviors:
We also wish to make it quite clear that in our discussion and assessment of the moral appropriateness of specific human behaviours, we continue unreservedly to be committed to the pastoral support and care of homosexual people. The victimisation or diminishment of human beings whose affections happen to be ordered towards people of the same sex is anathema to us. We assure homosexual people that they are children of God, loved and valued by him, and deserving of the best we can give of pastoral care and friendship.
It is hard, as we have noted, to see how current legislation against gay people and proposed legislation against the free activities of gay advocacy in Nigeria could conform to the general thrust of these Anglican statements. And, in fact, no effort has been made by the Nigerian Church (and, it must be admitted, by its supporters) to justify the coherence of such legislation with the common commitments of the Communion as outlined above.
Still, neither has the case been explicitly made as to how the concerns of Christians who view gay sex as sinful and corrosive of social ties can and should be fitted into the legal structures of a civil society that, even within a general framework of human rights, acknowledges the legitimacy of maintaining boundaries upon behaviours deemed subversive of common values (such as even the Organisation of African Unity 1981 Charter on Human and Peoples' Rights accepts).[15] The statements of the Anglican Communion, for all the clear direction of their concern, do not attempt such an explanation. This leaves open a wide field of contestation. If such an attempt at explanation is to be made, at least two further considerations need to be explored:
- What is the specifically Christian sense to values of freedom that categories of "rights" within the international community are in part designed to protect?
- What is the specific place of homosexual identity within this sphere of rights?
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Christians, freedom and the protection of rights
With regard to the first consideration, several approaches have been taken by Christian churches. As is well known, the Roman Catholic Church's attitude towards human rights evolved significantly, in its public definition, only in the last century, and in such a manner as to overturn, at least in the public imagination, previously held positions. By the time John XXIII issued Pacem in Terris in 1963, his defence of fundamental human rights (within the general outlook of the UDHR) seemed to stand in stark contrast to the Catholic Church's attack on the "liberal" character of such rights in the 19th century. Scholars have argued about both the internal consistency and rationale for these changes, from a historical perspective. Be that as it may, current Catholic thinking about human rights is founded on a clear theology of the human person as a thinking and willing being, whose purpose is bound up with the deliberated - and hence unconstrained - choice for and movement to God. The protection of a social space in which human beings can indeed think and choose, therefore, is a duty bound up with the Church's loving desire for the salvation of all persons. The Church understands, in this light - and in the light of horrendous historical experience, especially in the 20th century - the need by all people for a social context in which religious liberty is granted and defended. But more than that, she has come to view this liberty as a right that extends to the breadth of a "conscience" that is, without coercion, allowed the freedom to pursue its search for the truth according to its own choices, so long as these choices do not constrain the choices of others. Although this position is one that is justified on the basis of political prudence, it is even more deeply bound up with the nature of the human person and his or her vocation before God.[16]
The recognition by the Catholic Church that homosexuals, for instance, do not "choose" their erotic inclinations[17] means that there is an a priori Christian duty to ensure that homosexuals are granted an environment in which the "givenness" of this attitude is neither disregarded nor forcibly assaulted. This requires the creation and support of a context in which the deliberations and choices of homosexual persons are allowed to be made in a way that is honest about, and engaged with, the realities of their personal resources. This is so even if, in fact, there is a particular choice - chastity - that is desired by God.
Clearer (if not absolute) social obligations for the Church emerge from this recognition in theological context. These accord with the dual standards of protected liberties of choice and compassionate mercy. While these still need to be balanced with a received notion of the "common good", and in a way that is clearly under debate, the standards themselves remain firm and provide a test for Christian attitudes. Furthermore, these tests themselves certainly go beyond the bare outline of rights as articulated by the UDHR or the OAU's Charter. They bring specifically Christian imperatives to bear on informing the vision for formulating concrete policy. It needs to be said that such formulation has not yet been done by Anglican churches in any coherent fashion.
Other Christian traditions have approached the question of human rights differently, but in ways that finally uphold the explicit evangelical demand for the Church's concern with (and promotion of) human rights as given within the secular sphere. Oliver O'Donovan, for instance, has argued that key components of that ideal known as "the liberal society" are actually positive derivatives, in a post-Christendom civic sphere, of fundamental Christian promises and realities.[18] These include:
- a certain "freedom" of choice, that springs from the liberty given by the Lord's sovereignty over humanly-established authorities;
- the protected and "tempered' justice that flows from the work of God's forgiveness of sin in Christ;
- "equality" of status and protection within the social framework of the state, that is built upon the salvific gift of Christ to all peoples and conditions of people; and finally,
- freedom of "speech", that is given in the prophetic spirit's receipt and sharing of the Word, and that the civil realm protects for the sake of God's truth and its promulgation.
For O'Donovan, then, "freedom, mercy, natural right, and openness to free speech" are actual "gifts" of God, established in the revelation in history of the Son's Lordship. In their "liberal" civil versions, while they are certainly prone to distortion and even subversion, they are nonetheless instruments of divine address to (and wooing of) the "nations". As such they are part of the Church's patrimony to be carefully stewarded. When, therefore, questions of conflict or at least tension between the demands of human rights and the Church's moral teaching and witness emerge, as in the current debate over homosexuality, it is not simply possible to claim that the latter category trumps the former. After all, both the demands of human rights and Christian moral teaching and witness are part of the same consistent and integral Christian vocation, which they are to embody together as one. The failure to address the character of homosexual "rights" in this light, carefully and deliberately, is therefore itself a moral failure of the first order. And such a failure is certainly one that has beset Anglican churches at present.
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Homosexual identity and human rights
In relation to the second consideration - the place of homosexual identity in particular within the sphere of human rights - the Church surely needs to recognize, especially in light of the discussion above, that historical realities in themselves help define more clearly the evangelical duties of the Christian with respect to the application of rights to gay people specifically. The United Nations High Commissioner for Refugees, for instance, has decided since 1993 that homosexual persons are members of a "particular social group" whose treatment is regulated by international standards of human rights.[19] On this basis being a homosexual whose rights are denied in certain contexts is a justification for the granting of protected refugee status. The Commissioner is here acknowledging in particular an historical judgment about the moral contravention of freedom and mercy that has in fact taken place with regard to homosexuals. One need only remember the horrors visited by the Nazis upon homosexuals as a group to realise that simple membership in this class proved grounds for the actual persecution of gay people. The injustices of National Socialism, however, are only the epitome of a long history of "demonisation" and "victimisation" exercised against homosexuals. We should note that defining homosexuals as an identifiable "group" is not, from this perspective, an argument about metaphysical, genetic, or created being. It is rather an historical description of what identities others have constructed for certain persons in their mistreatment of them. And to this degree, the UNHCR's application of group status does not in any way preempt the theological discussion of homosexuality itself.
For from a Christian perspective, this history represents an assault upon God's own creation - homosexuals as human persons made in the image of God. Whether from a Catholic or Protestant viewpoint, therefore, this assault includes an attack upon fundamental rights granted by God and upon the reality of the Lordship of Christ Jesus. And in this context in particular the Christian Church is called to live in solidarity with those requiring mercy, while being obedient to the gift of mercy. Far from defending anti-homosexual legislation on the basis that it is supported by a culture shared in common with Muslims and traditional African mores, as has been done by some in Nigeria (in a form of theological argument through appeal to culture that parallels that advanced by some revisionists in liberal Western societies), it would appear as if this is an area where precisely the Christian Church is called to offer a witness in stark contrast with these values of the surrounding culture. On this score, one that is clarified and rendered acute by the history of actual mercilessness visited upon gay people, the Nigerian legislation cannot but be judged dangerous, and the Church support of such legislation, whether in Nigeria or elsewhere, deeply misguided. The fact that anti-gay legislation, in Nigeria and elsewhere, is by some accounts applied without order, used as means to settle grudges, and placed as a veil over mob violence is a sign of its inherent moral instability and vulnerability.[20]
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Conclusion: Looking Ahead
One thing this discussion ought to indicate is an existing foundation upon which churches, including those in the strained Anglican Communion, can and ought to agree regarding the protection of basic rights for homosexual persons even prior to a Communion-wide resolution of the question of the moral character of gay sex. The latter question, of course, is the cause of the Communion's current crisis; but this crisis must not be allowed to obscure the very real duties of the Christian Church to defend the person of all human creatures, homosexuals included, according to some very clear evangelical demands with respect to human rights. At the same time, the very reality of the question itself exposes the compelling demand that we explore and test the need for (and application of) civil constraints upon homosexual behavior and to do so in a way that does not a priori equate the perceived needs for such constraints as marks of persecution and "blind bigotry", which Rowan Williams has rightly pointed out.[21]
None of this discussion, however, has defined what is the proper framework of civil constraint by which the protection of rights and the Church's call to work for a proper moral ordering of its own life and society's can be articulated. This important work remains to be done. We have not distinguished the appropriate range of diversity of legislation Christians can and should accept within different cultural venues. We have not articulated the weight that different ecclesial interests ought to carry with respect to community health and mission. Bishop Chane's "line", that is, has not yet been carefully clarified. There is, for instance, every reason why the Nigerian Church, based on its own theological and moral commitments, should fear the unconstrained permission of gay advocacy within the church itself and within the surrounding civic sphere. She has only to look at the way in which such lack of constraint has contributed to the destruction of the American Episcopal Church and, to a lesser extent, other Western churches. Surely the example of unbridled democratic freedoms, applied not only to particular forms of sexual behavior but to the process of their promotion beyond even the civil political sphere, but within the systems of ecclesial decision-making, is not one - if only on a pragmatic basis - that other churches might wish to follow. But the seemingly reactive response of working for civil constraints upon homosexuals that overstep the bounds of legitimate human right and Christian mercy is a path that is equally destructive to the integrity of Christian life and witness. Not only is it fundamentally wrong in principle, its consequences may ultimately undermine that which the Nigerian church and others who share her commitments wish to defend. The experience of the Episcopal Church acts as a warning that a genuine Christian concern to combat clear injustice and the oppression of homosexual people may lead to an over-reaction (perhaps in the future even in parts of Africa) in which there is wider acceptance of the false conclusion that all questions relating to ethics and sexuality must be addressed solely within the paradigm of justice, rights and inclusion.
It is a part of the tragedy of the current division among Anglican Christians, among others, that these two choices - unrestrained advocacy of ecclesial and social blessing of homosexual relationships or harsh legal sanctions against the human personhood of homosexual people - have been offered as the only practical alternatives within the current debate. Thus, if there is a charge to be made regarding moral complicity in the abuse of fundamental human rights, rights that include the protection of social cohesion, the family, and moral instruction, as well as the rights of respect for the persons of homosexuals, it is a charge to be laid upon the consciences of all of us.
The Revd Dr Ephraim Radner is Rector Church of the Ascension, Pueblo, Colorado and senior fellow of the Anglican Communion Institute. The Revd Dr Andrew Goddard is tutor in ethics, Wycliffe Hall Oxford, a member of the Fulcrum leadership team and collegial theologian of the Anglican Communion Institute
Appendix
A Bill For An Act To Make Provisions For The Prohibition Of Sexual Relationship Between Persons Of The Same Sex, Celebration Of Marriage By Them And For Other Matters Connected Therewith Be It Enacted By The National Assembly Of The Federal Republic Of Nigeria As Follows:
- Short Title
This Act may be cited as Same Sex Marriage (Prohibition) Act 2006.
- Interpretation
In this Act, unless the context otherwise requires-
"Marriage" means a legally binding union between a man and a woman be it performed under the authority of the State, Islamic Law or Customary Law; "Minister" means the Minister responsible for Internal Affairs; "Same Sex Marriage" means the coming together of two persons of the same gender or sex in a civil union, marriage, domestic partnership or other form of same sex relationship for the purposes of cohabitation as husband and wife.
- Validity and Recognition of Marriage
For the avoidance of doubt only marriage entered into between a man and a woman under the marriage Act or under the Islamic and Customary Laws are valid and recognized in Nigeria.
- Prohibition of Same Sex Marriage, etc
(1) Marriage between persons of the same sex and adoption of children by them in or out of a same sex marriage or relationship is prohibited in the Federal Republic of Nigeria.
(2) Any marriage entered into by persons of same sex pursuant to a license issued by another state, country, foreign jurisdiction or otherwise shall be void in the Federal Republic of Nigeria.
(3) Marriages between persons of the same sex are invalid and shall not be recognized as entitled to the benefits of a valid marriage.
(4) Any contractual or other rights granted to persons involved in same sex marriage or accruing to such persons by virtue of a license shall be unenforceable in any Court of law in Nigeria.
(5) The Courts in Nigeria shall have no jurisdiction to grant a divorce, separation and maintenance orders with regard to such same sex marriage, consider or rule on any of their rights arising from or in connection with such marriage.
- Non-Recognition of Same Sex Marriage
(1) Marriage between persons of same sex entered into in any jurisdiction whether within or outside Nigeria, any other state or country or otherwise or any other location or relationships between persons of the same sex which are treated as marriage in any jurisdiction, whether within or outside Nigeria are not recognized in Nigeria.
(2) All arms of government and agencies in the Federal Republic of Nigeria shall not give effect to any public act, record or judicial proceeding within or outside Nigeria, with regard to same sex marriage or relationship or a claim arising from such marriage or relationship.
- Prohibition of celebration of same sex marriage in a place of worship
(1) Same sex marriage shall not be celebrated in any place of worship by any recognized cleric of a Mosque, Church, denomination or body to which such place of worship belongs.
(2) No marriage license shall be issued to parties of the same sex in the Federal Republic of Nigeria.
- Prohibition of Registration of Gay Clubs and Societies and Publicity of same sex sexual relationship
(1) Registration of Gay Clubs, Societies and organizations by whatever name they are called in institutions from secondary to the tertiary level or other institutions in particular and, in Nigeria generally, by government agencies is hereby prohibited.
(2) Publicity, procession and public show of same-sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise are prohibited in Nigeria.
(3) Any person who is involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private is guilty of an offence and liable on conviction to a term of 5 years imprisonment.
- Offences and Penalties
(1) Any person goes through the ceremony of marriage with a person of the same sex is guilty of an offence and liable on conviction to a term of 5 years imprisonment.
(2) Any person who performs, witnesses, aids or abets the ceremony of same sex marriage is guilty of an offence and liable on conviction to a term of 5 years imprisonment.
- Jurisdiction
The High Court in the States and the Federal Capital Territory shall have jurisdiction to entertain all matters, causes and proceedings arising from same sex marriages and relationships.
EXPLANATORY MEMORANDUM
This Act shall prohibit in the Federal Republic of Nigeria the relationship between persons of the same sex, celebration of marriage by them and other matters connected therewith.
End Notes
The notes in the text are hyperlinked into the end notes; to return to the text, click on the end note number
[1] See Voice of Integrity volume 8:3-4, Fall/Summer 1998, pp24ff, 37ff
[2]According to Article 214 of the Penal Code "any person who has carnal knowledge of any person against the order of nature or ....permits a male person to have carnal knowledge of him or her against the order of nature is guilty of a felony and liable to imprisonment for 14 years". Under Section 215 "Any person who attempts to commit any of the offences defined in the last preceding section is guilty of a felony and liable to imprisonment for 7 years. Under Section 217, "Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him or attempts to procure the commission of any such act by any male person, whether in public or private, is guilty of a felony and is liable to imprisonment for three years." Maximum penalties for non-consensual acts are the same as for consensual acts. Thus, under Section 352 of the Penal Code assault with intent to have "carnal knowledge with a man (or woman) against the order of nature" also carries a maximum penalty of 14 years' imprisonment, while unlawful and indecent assaults on a male person can be punished with up to three years' imprisonment. (PB and IB 2/92)
[3]The full text of the proposed bill is given as an appendix to this paper.
[4]The US Department of State, in a Press Statement of 1 February 2006, censured the proposed legislation, on the grounds that it "threatened to limit rights of sexual minorities". Many other political and church groups around the world have also condemned the proposed legislation and pleaded for its withdrawal.
[5]Some of the relevant human rights' treaties that the proposed Nigerian legislation is alleged to contravene are listed in the "Letter to President Obasanjo Regarding Bill to Criminalize Gay Rights, 22 March 2006" signed by, among others, Amnesty International and Human Rights Watch. Reference to some of these treaties will be made below.
[6]Among the almost 30 African nations that have explicitly outlawed homosexual activity are, eg:
Uganda: up to life imprisonment for gay sex;
Kenya: up to 14 years imprisonment for homosexual sex;
Zimbabwe: homosexuality is outlawed, with varying and unsystematized sanctions, including imprisonment - and there are documented cases of the laws being used against political opponents of the government;
Ghana: consensual gay sex is outlawed, but is considered a misdemeanor;
Zambia: up to 14 years imprisonment for gay sex.
South Africa appears to be the only African nation where homosexuality is clearly protected: the 1996 Constitution explicitly defends homosexuals from discrimination, and this has been followed by a series of court rulings and legislative acts that protect rights to gay sex. Other African nations, some of which are, curiously, Muslim in culture, make no mention whatsoever of homosexuality in their legal codes, eg Chad, Burkina Faso, Central African Republic, Rwanda. It should be noted here that Nigeria seems to be the only country in Africa proposing to extend its anti-gay legislation to the area of speech, education, and organization. Information on the legal situation worldwide is available from various sources (though care is needed that the data is not out-of-date): IGLHC, ILGA & Sodomy Laws
[7]For a discussion of the lack of clarity over the appeal to "rights" in the context of the Anglican debate over sexuality, see some of the brief contributions in A True Hearing (Anglican Mainstream UK/Church of England Evangelical Council, 2005), pp61-67
[8]Universal Catechism, 2358
[9]Congregation for the Doctrine of the Faith, Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons (1986), 10
[10]Congregation for the Doctrine of the Faith, Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons (1986), 10
[11]Church of Nigeria Standing Committee, 15 September 2006.
[12]Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 2003
[13]The Scotsman, 5 September 2004
[14]The case, Toonen vs Australia, concerned the International Covenant on Civil and Political Rights (1996), Article 2.26
[15]Cf Article 18: "1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community."
[16]For a discussion of the development of Catholic understandings and finally embrace of "democratic" rights, from a theological perspective, see Ephraim Radner, "The Two Providences: Democracy and the Church's Witness" at Anglican Communion Institute Article
[17]Universal Catechism, 2358: "The number of men and women who have deep-seated homosexual tendencies is not negligible. They do not choose their homosexual condition; for most of them it is a trial."
[18]Oliver O'Donovan, Desire of the Nations (Cambridge: Cambridge University Press, 1996), chapter 7
[19]The definition in question serves the application to homosexuals of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Cf, from the 1996 handbook Protecting Refugees: "Homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group. It is the policy of the UNHCR that persons facing attack, inhuman treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees." (UNHCR/PI/Q&A-UK1.PM5/Feb. 1996). See info at Human Rights Education Associates.
[20]Links to information on national treatment of gays, which in fact is quite sparse in the case of Nigeria, can be found through the International Gay and Lesbian Association (ILGA) or the International Gay and Lesbian Human Rights Commission (IGLHC) websites.
[21]Rowan Williams, "The Challenge and Hope of Being an Anglican Today" (June, 2006).
