BEFORE THE JUDICIAL COMMITTEE OF THE ANGLICAN CHURCH

IN AOTEAROA, NEW ZEALAND AND POLYNESIA

IN THE MATTER

of an application under clause 4.1 of

Canon IV Title C of the Canons of the
Church

AND
IN THE MATTER

of Motion 30 passed by the General

Synod/Te Hnota Whnui held at
Waitangi in May 2014 (Motion 30)

APPLICANTS SUBMISSIONS TO THE JUDICIAL COMMITTEE

These submissions elaborate the ARGUMENTS RELIED ON BY THE
APPLICANTS and proceed in the same sequence.

Argument 1 - JURISDICTION
1.1 The Applicants contend that same-gender blessings AND same-gender
recognitions are unconstitutional AND that clause 4 of Motion 30 is
unconstitutional.

The Committees task is to answer each of the three

questions separately.
1.2 If any jurisdictional barrier to answering one of the questions were held to
exist the other two questions would remain. The Applicants confidently
submit, however, that this Judicial Committee has jurisdiction to answer all
three questions.
1.3 There is one obvious difference between same-gender recognitions and samegender blessings, namely that authority for such recognitions is already in
place, if two permissions are obtained, whereas same-gender relationship
blessings are what the working group constituted under clause 1 of Motion 30
are asked to consider a process and structure for.

So blessings are

possibilities for the future.

1.4 Prematurity is not a valid objection to the Judicial Committees jurisdiction to
consider the Applicants challenge to the constitutionality of same-gender
blessings. Clause 1 of Motion 30 is about blessings from start to finish. A

prematurity objection would be open only if what was challenged was a

wholly hypothetical possibility which there was no objective basis for
thinking that General Synod or a diocesan synod was proposing to consider.
1.5 To characterise Motion 30 properly, it is necessary to read it as a whole.
When so read, it tends toward full acceptance of the proposition that samegender blessings are desirable, but the two integrities within the Anglican
Church (henceforward the Church) must be respected.

If the working

group were to recommend that the whole process should stop (other than
because it contravened the Churchs Constitution) it would at once be
claimed, and rightly, that the working group had misunderstood the plain
intent of the Motion. To assert that Motion 30 was neutral as to whether same
gender relationships should be open to being blessed (whatever the exact
connotation of bless and blessing) would be to ignore the obvious and
engage in wishful thinking.
1.6 The only part of Motion 30 which is challenged is clause 4. There can be no
competent technical argument that it is not severable.

The Judicial

Committee is not being asked to quash anything, but rather to interpret the
Constitution. The severability problem arises only when the High Court, in
judicial review proceedings, is asked to quash part only of an administrative
decision and leave the rest standing. In any event clause 4 is sharply different
from the Preamble to, and clauses 1 3 of, the Motion in that only clause 4
contains a permission to take action, i.e. to recognise in public worship a
same-gender civil union or state marriage of members of their faith
community.
1.7 The Applicants emphasise that their concern is with constitutionality. They
view same-gender relationship blessings and recognitions as profoundly
undesirable, e.g. in having a tendency to split the Church and in destroying
the Churchs overseas mission activity as opportunities in Africa and Asia
dwindle and close.

But these submissions have to concentrate on

constitutionality. The Applicants are not ranking unconstitutionality above

undesirability or vice versa.

If something done by General Synod is

unconstitutional it must be declared to be such, irrespective of convenience,

secular public opinion, or any pain that declaration may be asserted to cause
(typically without supporting empirical evidence) to the LGBT community.
1.8 Each of the three questions asked falls squarely within Canon IV Title C.
Under Part G clause 3 of the Constitution:
Any doubt which shall arise in the interpretation of the Constitution for
the time being of this church should be submitted for final decision to the
General Synod/te Hinota Whnui or to some Tribunal established by it in
that behalf.

1.9 The first Preamble to Canon IV Title C picks up that language. This Judicial
Committee is the tribunal established: see the operative words of clause 1.
The present application falls within the first preamble. The second preamble
is irrelevant because this is not an appeal by a person aggrieved by a decision
of a diocesan synod. The third preamble is irrelevant because Motion 30 is
not any canon or statute already passed.
1.10

The Applicants seek the resolution of a doubt arising in the

interpretation of the Constitution.

This includes a doubt as to the

interpretation of any action or resolution of General Synod.

The first

preamble of Canon IV Title C should be liberally construed. What counts as

interpretation? Any application of the general words of the Constitution to
a particular canon, statute resolution or other action of General Synod is
included. The word interpretation does not mean: what is the meaning of
the Constitution in the abstract, i.e. divorced from some definite action or
proposed action. If preamble 1 were held to mean that, it would be of very
little use in the practical life of the Church; it would do no more than include
questions like: As a matter of interest, when bishop is used in a [named
clause] would it include a retired bishop who had been a bishop in a different
diocese? Clause 4.1 shows that that must be wrong. The facts of the case
must be set out. In a wholly abstract argument there are, by definition, no
such facts. Therefore interpretation covers any question as to how the
words of the Canon, Statute, Deed or instrument (if any) are to be applied.
Similarly, where the act or decision of a diocesan statute is appealed from,
that must be set out in the application. The question will then be: how does
the Constitution apply to this very act/ decision?

1.11

Clause 3.5 shows that Canon IV Title C envisages that this Committee is

empowered, indeed obliged, to interpret the Constitution itself, not merely

documents of lesser status.

Otherwise, it would be nonsensical to put

annotations against the appropriate canons or clauses of the Constitution.

1.12

Apart from these textual points, it would be absurd to construe Canon IV

Title C narrowly. To do so would mean that the Canons provide for the
resolution of low level doubts (e.g. what does the word congregation in a
diocesan synod statute mean), but do not provide for the resolution of far
more significant decisions affecting the Province as a whole.

If so

extraordinary an exclusion were intended one would expect to find it plainly

stated. It is not.
1.13

As to the argument advanced by the Standing Committee of the Diocese

of Christchurch, the Applicants repeat paragraph 4 of their Reply to

Responses Received.

Argument 2 IMPORTANCE
2.1

It is of great importance to the Church as a whole that the three questions be

answered by the Judicial Committee, and as soon as possible, so that the
Working Group established by clause 1 of Motion 30 can work on a secure
constitutional basis.

2.2

As to the claim that the Application is precipitous and seeks to take away
Church members ability to debate critical matters, that claim fundamentally
misunderstands the Application. The Applicants repeat paragraph 2.2 of their
Reply to Responses Received.

2.3

The Applicants sincerely want constitutionality to be clarified as soon as

possible.

It is submitted that it will benefit no-one if there is basic

constitutional uncertainty going forward. It will certainly not help the LGBT
community to be offered false hope, and it will not assist the Church or its
part in Gods mission to spend thousands of dollars on working group
expenses, and thousands of hours of time in further debate, only to be told by
the Tribunal constituted by the CEE Act 1928 and regulated by Canon VII

Title G that because of unconstitutionality all such expenditure was, in the

language of Ecclesiastes 1, a vapour, a vanity, utterly useless.
2.4

Would the present challenge be better heard by the said Tribunal?

answer is No.

The

The Applicants repeat paragraph 4.4 of their Reply to

Responses.
2.5

The Constitution of this Church is part of the law of New Zealand since it is a
Schedule to the CEE Act 1928. It will be legally necessary to alter that Act if
same-gender blessings (and recognitions and marriages) are repugnant to the
Constitution as it presently stands.

In order to achieve amendment by

Parliament the Working Group will need to consider, and consult on, the
precise wording of the change, the time of introduction of a bill, how best to
lobby MPs and whether anything can be done to prevent our Church breaking
into two parts. No-one should be under any illusion: the recognition of two
integrities will not by itself prevent a fracture. The Working Group should
not defer consideration of these difficult issues unnecessarily. The sooner it is
obliged to tackle them, the better. The Judicial Committees decision on the
present Application will have the beneficial result of clarifying what the
Working Group must grapple with, one way or the other.

Arguments 3 and 5 THE CONSTRAINTS ON GENERAL SYNOD

3.1

The Constitution notes in recital 9 that Doctrine is recorded in the

Constitution:
AND WHEREAS (9) this Constitution declares the Doctrine and
Sacraments which the Church holds and maintains ...

3.2

Clause 1 of Part A of the Constitution, continuing with the 1857 text, states:
This Branch of the United Church of England and Ireland in New
Zealand doth hold and maintain the Doctrine and Sacraments of CHRIST
as the LORD hath commanded in His Holy Word, and as the United
Church of England and Ireland hath received and explained the same in
the Book of Common Prayer, in the Form and Manner of Making,
Ordaining, and Consecrating of Bishops, Priests, and Deacons, and in the
Thirty-nine Articles of Religion. And the General Synod hereinafter
constituted for the government of this Branch of the said Church shall
also hold and maintain the said Doctrine and Sacraments of CHRIST ...

3.3

Clause 1 of Part B of the Constitution records that:

This Church holds and maintains the Doctrine and Sacraments of Christ
as the Lord has commanded in Holy Scripture and as explained in:

3.4

The Book of Common Prayer 1662

Te Rawiri
The Form and Manner of Making, Ordaining, and Consecrating

Bishops, Priests and Deacons

The Thirty Nine Articles of Religion
A New Zealand Prayer Book He Karakia Mihinare o Aotearoa.

The sources of Doctrine set out in these clauses are designated as

Formularies of the Church in clause 4 of Part B and in s 2 of the CEEA.
What are General Synods responsibilities in respect of Doctrine?

3.5

The Fundamental Provisions of the Constitution are very clear that the
General Synod must hold and maintain the Doctrine of the Church:
3.5.1 Clause 1 of Part A:
And the General Synod hereinafter constituted for the
government of this Branch of the said Church shall also hold and
maintain the said Doctrine and Sacraments of CHRIST ...

3.5.2 Clause 1 of part B:

This Church holds and maintains the Doctrine and Sacraments of
Christ as the Lord has commanded in Holy Scripture and as
explained ...

3.5.3 Clause 2 of Part B:

The General Synod (also known as te Hinota Whnui) shall also
hold and maintain the said Doctrine and Sacraments of Christ.

3.6

The obligations to hold and maintain clearly exclude any amendment of

Doctrine, which is prohibited by the restrictions on General Synods powers
and abilities to amend the Constitution.
Can that Doctrine be changed?

3.7

The only ways to actually change the Doctrine of the Church are to:
14.1 amend those parts of the Constitution which identify the sources of
Doctrine, to add or remove a source of Doctrine; or
6

14.2 amend those sources themselves, without amending the Constitution.

3.8

The constitution and the CEEA expressly prohibit the former, and the latter
where Doctrinal issues are involved. Other amendments are not prohibited.

3.9

There is also, discussed below, the possible approach of seeking to effect

Doctrinal change through the indirect means of passing a Canon or resolution,
or taking other action, which purports to adopt a Doctrinal position without
either amending the Constitution or the Formularies.
Amending the Constitution

3.10

As shown above, clause 1 of Part A and clause 1 of part B of the Constitution

records the sources of Doctrine.

3.11

These provisions are designated as Fundamental Provisions of the

Constitution and protected by clause 4 of Part G of the Constitution
(emphasis added):
It shall be lawful for the General Synod/te Hinota Whnui to amend or
repeal all or any of the provisions hereof save and except those which
have been hereinbefore declared to be FUNDAMENTAL
PROVISIONS.

3.12

Although clause 4 of Part G is not itself a Fundamental Provision (i.e. there is

no double entrenchment in constitutional parlance), this prohibition is also
repeated in clause 6 of Part A, which is a Fundamental Provision:
The above provisions [i.e. including clause 1] shall be deemed
fundamental, and it shall not be within the power of the General Synod,
or of any Diocesan Synod, to alter, revoke, add to, or diminish any of the
same.

and therefore Fundamental Provisions are double entrenched against

amendment. Note the absolutely crucial words or diminish.
3.13

Clause 1 of Canon 1 Title C reinforces that the Fundamental Provisions are

outside General Synods power of amendment:
When any proposal shall be made under clause 4 of Part G of the
Constitution/re Pouhere for any alteration, amendment, or repeal of any
non-fundamental clause of the Constitution/te Pouhere, such proposal
shall be introduced and dealt with in the same manner as is provided in
the Standing Orders in respect of Bills.
7

3.14

Therefore it is not possible to amend the Fundamental provisions of the

Constitution, such as those which record the sources of Doctrine. That was so
in 1857 and was affirmed, and entrenched, again in 1992.

3.15

This has always been the situation, whether changes were influenced by
society or otherwise. Recital 10 of the Constitution records that (emphasis
added):
AND WHEREAS (10) Clause Three of the [1857] Constitution made
provision for the said Branch to frame new and modify existing rules (not
affecting doctrine) with a view to meeting the circumstances of the
settlers and of the indigenous people of Aotearoa/New Zealand.

3.16

The Constitution intended this always to be the case, providing in clause 3 of

Part A:
PROVIDED ALSO THAT in case a Licence be granted by the Crown to
this Branch of the Church of England to frame new and modify existing
rules (not affecting doctrine) with the view of meeting the peculiar
circumstances of the Colony and native people, it shall be lawful for this
Branch of the said Church to avail itself of that liberty.

3.17

Clause 5 of Part A is also significant because it is much broader than clause 4

of Part G, and extends beyond express concepts like alter, amend or repeal
to include the more indirect concept of diminish, which must include some
action which detrimentally affects the Fundamental provisions, their meaning
or importance, without actually altering revoking or amending them.
Amending the Sources themselves

3.18

As noted above, the sources of Doctrine set out in clause 1 of Part A and
clause 1 of part B of the Constitution are designated as Formularies of the
Church by the Constitution and s 2 of the CEEA.

3.19

There is provision under both the Constitution and the CEEA for General
Synod to amend the Formularies, but expressly not in relation to Doctrine.

3.20

Section 3 of the CEEA records that:

It shall be lawful for the Bishops, Clergy and Laity of the Church, in
General Synod assembled, from time to time in such way and to such
extent as may to them seem expedient, but subject to the provisions in
this Act contained, to alter, add to, or diminish the Formularies ...

Provided the provisions of this section shall not empower or be

deemed to empower the General Synod to depart from the Doctrine
and Sacraments of Christ as defined in clause one of the
Constitution.

Doctrine
3.21 Archbishop Rowan Williams, reviewing Anthony Thiseltons recent very
solid work, The Hermeneutics of Doctrine, talks about the central
importance of doctrine. JND Kelly, in his Early Christian Church (1972)
at 8, states: It is impossible to overlook the emphasis on the transmission of
authorative doctrine which is to be found everywhere in the New Testament.
3.22

But what exactly does our first fundamental clause tell us? It is important to
be clear what it means because it operates as a constraint on General Synod.
When you examine the constitution closely you find that General Synod
cannot ignore, or do anything that diminishes, the fundamental clauses. It
is bound by them. No canon or resolution of General Synod can transgress
the doctrine and sacraments of Christ. It is completely unlike Parliament in
this respect.

Parliament is not substantively constrained by a written

Constitution.
3.23

The word doctrine has fallen into some disfavour; one hardly ever hears it
used in sermons and popular Christian literature by and large avoids it. The
reasons for this are obscure, but probably due to the overwhelming
individualism in our current New Zealand culture. Possibly it is because
many in our worship services would find it too heavy; possibly it is because
of its cousins, doctrinal basis and doctrinaire. So it is important to stress
that simply because something presents as doctrine does not mean that it is
beyond analysis or argument.

3.24

Doctrine is not defined in the Constitution in either its 1857 or 1992

versions. The 1992 version did not alter the original nineteenth century
wording.
Doctrine is what is taught; a body of instruction (NZ Oxford Dictionary,
316). It derives from the Latin doceo, I teach.

Whose doctrine? The Constitution, as we have seen, refers to the Doctrine

of Christ but we can and do also speak of the doctrine of the Church or
Anglican doctrine.

Clearly, Christ and his Church are not synonyms.

When interpreting the Constitution we are therefore obliged to place a

meaning on the doctrine of Christ.
Different modern translations of the Bible use teaching or doctrine as
equivalents.

Thus the Apostles doctrine simply means the apostles

teaching. Acts 2.42. There are numerous references in the New Testament to
the doctrine, meaning the teaching, of Christ: see, e.g., Matt 7.28 and John
7.16. Timothy was urged to instruct certain people not to teach any different
doctrine: 1 Timothy 1.3 (NRSV). Didiskalia means both the act and content
of teaching. It is used of the Pharisees teaching. It often refers to some body
of teaching used as a standard of orthodoxy. Didache is used in more parts of
the New Testament. It too can mean the act or the content of teaching.
3.25

No tenable distinction can be drawn in the present context between matters of

faith and matters of conduct. Any assertion that doctrine in our constitution
is confined to matters of faith or belief is wrong, indeed absurd. It would
mean that teaching in the Ten Commandments, repeated or not abrogated in
the NT, about Christian behaviour would be treated as falling within a
different category from teaching that Jesus was raised from the dead. It
would mean that our Church could decide to proclaim that it was no longer
expected of Anglicans that they should honour their fathers and mothers.
Vanhoozer in The Drama of Doctrine: A Canonical-Linguistic Approach to
Christian Theology argues rightly that doctrine is indispensable for
understanding and for truthful living. Far from being unrelated to life, it
serves the church by directing its members in the project of wise living
(Drama, xii).
On the other hand, the Church regulates its life by many rules and nonbinding exhortations but does not teach them. Such normative material or
advice does not rank as doctrine. General Synod is not prohibited from
altering such matters. Examples are:
Church governance matters, e.g. how dioceses are to be represented in
General Synod;
10

Liturgical formulations not altering doctrine;

Practical details about the conduct of worship or pastoral ministry.
Turning to the doctrine of Christ, it seems clear that those who approved
the first Constitution of our Church must have meant this to be equivalent to
Christian doctrine. They cannot have meant to refer exclusively to teaching
attributed by the Gospel writers to Jesus himself. Had they wished to do that
they could easily have used the phrase the teaching of Jesus. In any event,
to drive a wedge between Jesus own teaching and that of Paul and the other
NT writers would have been wildly unorthodox and seen as heretical in the
middle 19th century; and it would be anachronistic to drive this wedge now
since attempts to separate Jesus from Paul, and to hail Paul as the real founder
of Christianity, were not made by some theological writers until much later.

Argument 4 PRELIMINARY STEPS

4.1

General Synod cannot constitutionally resolve to take preliminary steps

towards the adoption of any doctrine, practice, liturgy, rite, or towards the
approval of any relationship between people, which is contrary to the
fundamental clauses/provisions of the Constitution of the Church.

4.2

It is beside the point that in 2014 General Synod did not purport to pass or
alter any canon or statute in order to introduce same-gender recognitions
(subject to two permissions). This fact is immaterial because the fundamental
provisions of the Constitution constrain General Synod in everything it does,
including every resolution it passes.

The fundamental provisions of the

Constitution apply to all members of the Church, all office bearers, all
assemblies and Committees, and they apply all the time.

There is no

exemption for procedural resolutions or provisional arrangements. There is

equally no exemption when a committee is appointed to devise a liturgy to
drape around a practice such as the blessing of same-gender relationships just
because that liturgy will require further consideration and adoption at a future
meeting of General Synod (in this case 2016).
4.3

If the constitutional position were otherwise it would follow that it would be

constitutionally in order for General Synod to resolve that long term
11

adulterous relationships should be recognised in public worship (how oldfashioned and discriminatory it is to discriminate against loving couples who
simply dont want to get married in church), and that an appointed
committee should examine and report on the implications of this. Probably a
conscience clause would be recommended to exempt dissenting clergy.
This would be unconstitutional simply because the recognition ceremony
would constitute, and be seen by the congregation as, an APPROVAL of the
adulterous relationship.

But the Church cannot approve adulterous

relationships because Thou shalt not commit adultery - one of the Ten
Commandments which Jesus actually extended. The church would thereby
be diminishing the doctrine of Christ; it would be rejecting its authoritative
starting point.
4.4

The constitutional position might possibly be different, depending on the

details, if General Synod initiated entirely neutral steps to explore whether a
novelty should be introduced. Neutral here connotes something which may
be freely gone ahead with or reversed after further exploration. Thus it would
probably be constitutional to approve the experimental recognition of the
relationship between a long-term care provider and person being cared for,
and to appoint a Committee to develop a liturgy, and to explore pastoral
issues, and to report back to the next General Synod. At that Synod it would
be open, ex hypothesi, to change its mind and discard the proposal in view of
practical difficulties. That scenario is far removed from the present one.

4.5

The inescapable point of clause 4 of Motion 30, however, is that General

Synod is pronouncing it good to have same-gender relationship blessings in
Anglican public worship. They are being approved. Consistently it in effect
says: sorry, LGBT Community, youll have to wait a bit longer. There are
practical issues not yet resolved, so well get help from a Working Group. It
would be inconsistent with the whole tenor of Motion 30 to regard samegender recognitions as a first step that may well be reversed. Clause 4 is not
neutral. It is unconstitutional.

12

Arguments 7 and 8 SAME-GENDER SEXUAL ACTIVITY AND THE

SCRIPTURES
5.1

The Scriptures clearly teach that same-gender sexual activity of all kinds is
sinful and wrong. In interpreting the Scriptures it is important to read verses
condemning homosexual activity (as they do univocally) in conjunction with
the scriptural teaching in both Old and New Testaments about the nature of
marriage.

5.2

Not only is marriage intended to be between a man and a woman, and to be

lifelong, but it is also declared to be the only proper context for sexual
activities. All other contexts, and there are several lists in Scripture, involve
porneia, i.e. sexual immorality.

5.3

For present purposes sexual activity means genital activity. The expression
is not confined to sexual intercourse or to sodomy. It is, of course, possible to
envisage a same gender relationship, whether between males or females, in
which no physical, genital activity ever occurs.

But such would be

exceptional. A clergyperson marrying a man and a woman is entitled to

assume that they will engage in sexual intercourse, and a clergyman blessing
a same-gender couple (or marrying them) would typically and justifiably
make the same assumption.

Thus relationship approval is verbally

distinguishable, but pastorally and practically indistinguishable, from the

approval of homosexual acts.
5.4

The Applicants adopt, for convenience, what Dr Brett Cane, of St Aidans

Anglican

Church,

Winnipeg

says.

See

Cane,

The

Bible

and

Homosexuality, in Same-Sex Relationships, Bible and Church, A Reader,

Part 1 (Wellington Diocese, June 2013):

13

14

15

16

17

18

19

20

21

22

23

24

25

The remaining paragraphs in this Part of these submissions do not repeat

Cane, but, building on his excellent analysis, add some elaborations.
5.5

It is not enough for proponents of same-gender blessings, and of recognitions

as an interim measure, to state that at least two interpretations of scripture
have been advanced. That is perfectly true, but the question we have to face
is: is any interpretation of scripture other than the orthodox or traditionalist
one valid? Or even reasonably open? The Applicants say No, and that the
answer No remains the same when one is sincerely trying, as the Applicants
are, to hold the Anglican Church of Aotearoa New Zealand together in a
single structure. Unity and truth are both highly desirable attributes. But in
the end, if they cannot both be had, we must cling to revealed truth.

5.6

The Bible is our score. As with a musical work, the creativity of individual
performance must be faithful to that score. Thiselton develops this analogy in
his essay on Knowledge, Myth and Corporate Memory Believing in the
Church, 74), concluding that:
to offer an interpretation which did violence to the [Bible] text would
be to substitute some narrower individual viewpoint for the breadth and
range of successive layers of corporate memory, belief and knowledge,
gained by a community, or by a community of communities.

5.7

If intellectually untenable interpretations of scripture are counted as open and

valid simply because some senior members of the Church hold them,
scripture itself becomes no longer a score to follow so much as a theme which
can be endlessly improvised upon. It is glibly said by some that doctrine is
dynamic. It might equally be said that eliminating some bars from the 1812
Overture would be a progressive and therefore dynamic interpretation of
it. All lovers of classical music would quickly repudiate that view.

5.8

There is a distinction between the word of men and the word of God: see
Paul in 1 Thess 2.13. Unless this vital distinction is strongly maintained, the
Anglican Communion as an institution will not be able to claim that it
proclaims the Gospel of Jesus Christ. Within Anglicanism, scripture has
always been recognised as the Churchs supreme authority (Windsor Report
(2004), Section 53).

26

5.9

A possible misunderstanding must be avoided. This Committee must insist

on a vital distinction which is often lost sight of or submerged the
distinction between homosexuality, a psychosexual orientation, and
homosexual acts. Pope Francis has emphasised this distinction in August
2013 and the reaction of the cartoonist in the Dominion Post was to lampoon
it as though it were a half-hearted technical quibble. Never in the Bible is
homosexuality as such condemned.
Homosexual acts, on the other hand, are condemned, but not placed in some
specially evil or disgusting box, from start to finish. Most Africans have
never grasped this basic point. Even learned contributors to same-sex debates
sometimes appear to be muddled. Even when a writer is challenging what is
regarded as a traditionalist misunderstanding of scripture, the word
homosexuality will often be employed when homosexual acts would be
more accurate.

One example among many is Dennis Prager (Judaisms

Sexual Revolution, 2001 Crisis Magazine): It is the Bibles moral evaluation

of homosexuality that distinguishes homosexuality from other offenses.
Sometimes an author uses homosexuality to mean homosexual acts, e.g. Dan
Via in The Bible, the Church and Homosexuality (Via and Ganon, 2003):
The traditional view takes the bibles strictures against homosexuality at face
value. Although we know what he means, Wink says that the main scriptural
tests unequivocally condemn homosexuality (Biblical Perspectives on
homosexuality, The Christian Century, 1979).
5.10

Probably the most elaborate discussion of homosexuality in scripture is that

by possibly the Christian worlds leading modern ethicist, Richard B Hays, in
chapter 16 of The Moral Vision of the New Testament (1996).

Hayes

emphasises: The biblical witness against homosexual practices is univocal

(at 389). Here is his overall conclusive at 399-400:
Thus, in view of the considerable uncertainty surrounding the
scientific and experiential evidence, in view of our cultures present
swirling confusion about gender roles, in view of our propensity for
self-deception, I think it prudent and necessary to let the univocal
testimony of Scripture and the Christian tradition order the life of the
church on this painfully controversially matter. We must affirm that the
new testament tells us the truth about ourselves as sinners and as Gods
sexual creatures: marriage between man and woman is the normative
form for human sexual fulfilment, and homosexuality is one among
27

many tragic signs that we are a broken people, alienated from Gods
loving purpose.

Argument 9 THE CLEAR WITNESS OF THE FORMULARIES

6.1

Same-gender relationship recognitions are not only contrary to the Scriptures;

they are also contrary to the Doctrine of Christ as the Lord has commanded in
Holy Scripture as received and explained in the Formularies of the Church
as defined by clause 1 of the Fundamental Provisions. In several parts of the
Book of Common Prayer and in other Formularies it is explained (if any
explanation be considered necessary) that the Anglican Church holds to the
traditional and centuries-old understanding of the Scriptures and that
fornication, adultery, homosexual acts and lewd and unchaste behaviour
generally are sinful and wrong.

6.2

The Church needs to honour the contributions of many generations of

Anglican predecessors, reflected in the formularies (as defined in the
Constitution) and particularly in the NZ Prayer Book.

Some aspects of

biblical teaching must have appealed to them as so clear as not to require

much explanation. The proper use of sexuality was one of these. All our
formularies, and all the prayers bearing on this topic in our present Prayer
Book uphold the view, or clearly imply, that the only right context for genital
sexual activity is within marriage.

Homosexual activity has occurred

throughout history, and some of it possibly loving and permanent. It is

ridiculous to suppose that all our departed brothers and sisters were both
ignorant and wrong.
6.3

Other parties to this Application are challenged to point to any words in the
BCP or the Ordinal or the 39 Articles of Religion which contradict or qualify
the plain reading of what the Fundamental Provision in Part A of the
Constitution refers to as His Holy Word.

6.4

In the Book of Common Prayer (1662) there was a Commination Service,

now fallen into disuse here, which explicitly warned same-gender activities
among those which Anglican Christians must not continue to commit.

6.5

The formularies of our Church exalt Christian marriage. Paragraph [1] of the
Judgment in The Gay and Lesbian Clergy of Auckland, 17 October 2013,
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refers to a Christian marriage which is defined by the Formularies as a

physical and spiritual union of a man and a woman. See also paragraph [24]
referring to this as the doctrine of the Anglican Church. Title G, Canon III,
clause 1.3 states The Churchs teaching [semble synonymous with
doctrine] on Christian marriage is enshrined in the Formularies of the
Church.
6.6

The Marriage Liturgies in NZPB expressly refer to husband and wife (780).
Children in their family will be the result of their bodily union, at least in
most cases. It is marriage, and by implication marriage alone, which enables
two separate people to share their desires, longings [etc] (Third Form, 790).
It would necessarily diminish the Anglican understanding of Christian
marriage formally to bless a relationship between infatuated teenagers who
decline marriage, or an adulterous relationship between a man and woman
who decline marriage, or one of whom is ineligible to marry. The same
reasoning must apply in the analogous case of same-gender couples,
especially since the blessing of such a relationship is so close to the
solemnisation of a marriage as to be indistinguishable from it in the eyes of
many. The difference will be wafer thin.

6.7

Article XX of the 39 Articles decrees that the Church ought not to decree
anything against Holy Writ. It is implicit that there are many statements and
injunctions in the scriptures which are susceptible of only one proper
interpretation.

Obviously, the Appellants do not contend that this is

universally the case.

6.8

Everyone at General Synod is duty bound to conform themselves to the

Constitution. This is a personal, not merely a collective, responsibility. Thus
Bishops must encourage obedience to Gods word by Gods people, and to
keep the Church true to its faith, as found in Scripture and the Creeds.
(NZPB, 913). Priests, when being ordained, solemnly promise to set forth
the doctrines of the faith as this Church [not you individually] understand
them? Deacons declare that they hold to the doctrines of the faith as this
Church understands them.

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Arguments 10 and 11 DIMINUTION

7.1

The General Synod cannot constitutionally set in motion a procedure

intended, as Motion 30 does, to lead to the approval of same-gender
relationships. That end result at the very least diminishes the scriptural
teaching.

It approves, or leads to, or tends toward, the approval of a

relationship which the Scriptures disapprove. Diminution of the formularies

is forbidden: see, in particular, clauses 1 and 6 of Part A and clauses 4 and
6(a) of Part B of the Constitution.
7.2

It makes no difference, for present purposes

7.2.1 whether the parties are members of the faith community associated
with a church where a recognition permitted by clause 4 occurs; or
7.2.2 whether they are in a same-gender civil union or state marriage: or
7.2.3 whether they are in a covenanted relationship sincerely believed to be
a permanent one.

7.3

Diminution is perhaps the most important word in this Judicial Committee

hearing. The first meaning given in the Shorter Oxford English Dictionary is:
To make (or cause to appear) smaller; to lessen; to reduce in magnitude or
degree.

7.4

Diminution does not occur only when part of a doctrine previously held by
the Church is chopped off. It also occurs when the full significance of the
doctrine of Christ is reduced in magnitude or significance. If, for instance,
General Synod were to resolve that it is optional for Easter Day to be
celebrated, that would diminish the doctrine of the resurrection of Our Lord
even if the resolution concentrated on Easter Day and said nothing about his
bodily resurrection. The resolution would be unconstitutional.

7.5

For reasons already given, both same-gender recognitions and blessings

diminish the doctrine of Christ (and centuries of Catholic, Protestant and
Orthodox understanding as well). The basic institution of Christian marriage
becomes less important, and one of its principal facets, namely the union of

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different genders, is undermined. The world is told: that characteristic is not

so important after all. Cultural accommodationism governs what we teach.
7.6

The factors mentioned in 7.2 are limiting conditions embedded in clause 4.

They do not serve to remove its constitutional vice.

Arguments 12, 13 and 14 IN THE PARISH CHURCH

8.1

There is a fundamental difference between welcoming a person into the life

and worship services of the Church, and approving any relationship which
that person has, sexual or otherwise.

8.2

The key operative words in clause 4, namely recognise in public worship,

are of uncertain meaning but are left undefined by Motion 30.

Such

recognition cannot be marriage or a rite of blessing, but the connotation of

blessing is also uncertain.
8.3

However, whatever words are used in a same-gender recognition, and

whatever prayers (if any) are offered, and whatever congregational response
is invited, a recognition will constitute an approval of the relationship
between the parties. It will also be perceived by Christians who are not
Anglicans, and by people right outside the Christian faith, as an approval.
The key question for many is bound to be Does the Anglican Church
approve or disapprove of same-gender relationships? The answer will have
to be yes. The same is true, a fortiori, of same-gender blessings and samegender marriages.

8.4

To recognise something is to accept that something is true or important

and that it has legal or official authority. Merriam Webster dictionary. The
New Oxford Dictionary of English gives an almost identical definition as one
meaning.

Thus under clause 4 same-gender relationships, quite possibly

involving regular sodomy, will be regarded as important, authorised and, most

significantly, APPROVED.
8.5

It may be contended that the recognition of qualifying same-gender

relationships merely amounts to acknowledging that the parties have already
contracted a marriage under the Marriage Amendment Act 2013, or a civil
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union. But this suggestion is hypocritical: such a recognition in Church

would serve no useful purpose as it would, by definition, not create a status or
accomplish anything, and would do no more than advertise what was already
well known (just as regular worshippers quickly become aware that a man
and a woman sitting together are husband and wife).

The truth is that

whatever words were used to do the recognition, whether with a set liturgical
format or informal style, whether with prayers for the relationship or without,
the recognition would be a sign of APPROVAL. To contend otherwise is
contrary to common sense. It is baffling why proponents of same-gender
recognitions and blessings constantly sidestep the obvious question asked by
those not wandering in some esoteric theological wonderland: does the
Anglican Church approve these relationships, or not? And if it does approve,
what information is a clergyperson likely to have to suggest that this
relationship is, contrary to the statistical evidence, likely to be permanent?
Only the participants say-so.

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