Send an enquiry now >

Evolution....Church-style

Richard

Q: Is Christianity a broad “church”?

A: Absolutely.

Q: May conservative and progressive churches (and wings within churches) coalesce?

A: Why not?

Q: Is it problematic to discriminate against someone for their sexual orientation?

A: in regular civil society, “Yes”

A: in a Church environment manifesting religion, it is lawful to do so if the rules of the church provide for discrimination (see: Human Rights Act 1993 ss 28,38).  Ironic, anyone? What about when the discrimination befalls people who get no opportunity to consent (or otherwise) to the expression of the religious belief? What is permissible in the private domain of the religious association is not always permissible in the public domain of general society - which interface is where much of the tension is. Article 18 of the International Convention on Civil and Political Rights 1966 (and art 22 for the denominational rights) are tempered by article 19 - which does also touch on public health. NZBoRA 1990 ss 13 and 15 are the domestic counterparts....but heading back on track for this article -evolving Church doctrine......

Hypothetical: Updating Religious Doctrine – When Members wish to update doctrine on the Gay Cleric/ gay marriage issue

Feel free to play Bob Marley and the Wailers, “One Love” as you read:  https://www.youtube.com/watch?v=J2pDMGHQxRA&ab_channel=MyfavoriteworldPOPs  (accessed 5/2/2022 – on the eve of his birthday). 

As a Presbyterian discriminated against at an Anglican School (Kings Prep) – jokes, as an Aussie Rules Player discriminated against in New Zealand (jokes) – as a player of rugby league at AGS (and rugby) - jokes, as an LGBTI-supporter, yet otherwise reasonably traditional Presbyterian – caught in between….playing rugby1980-2001 (being awkward therein in trying to uphold one's faith and moral beliefs [not always successfully], but also be part of the team - not such a joke: times have changed with leaders like Brad Weber, TJ Perenara but also Ken Gray decades beforehand). Then again, I am also a strong supporter of the freedom of religious belief and its manifestation (Israel Folau: an honestly held, not uncommon doctrinal belief - the limits for me personally are generally to ensure the manifestation of religious beliefs comes within internationally accepted human rights norms): it is possible to see both sides of the debate in Church circles.  The head abides by the law, the heart yearns for justice: the unadorned type Bob sings of.

In legal circles, post-Boomers might forget the struggles of Homosexual Law reform and not be aware of the brave lawyers (amongst others such as MPs - I am biased in favour of lawyers here!) who pushed hard to repeal legislative discrimination. Said discrimination is actually a ground of discrimination under the Refugee Convention 1951.

It is lawful for churches to discriminate, but even conservative church denominations (being provocative there – my dear Anglican Mum will not speak to me for a week!) such as the Anglican Church might evolve and align with modern thinking, if the members so wish to. Others may prefer to hold to historic doctrine, unbending in their beliefs. Tact and grace has to be the key.

I have been clearly advised by my thesis reviewer to omit certain parts and this section is carved off in that spirit.  My thesis topic is “Is Contract Law the best legal methodology to resolve church property disputes”.  I read the NZ Herald today (paper version -old school!) this morning, regarding Chloe Swarbrick MP (a force of nature [whichever party you support]- https://www.nzherald.co.nz/lifestyle/chloe-swarbrick-on-being-queer-depression-and-starting-a-family/O47NIMOJ6NPT3RQDVMNN6MLTWQ/) and went to the East Coast Bays Library (Browns Bay) which is presently honouring queer culture (as I found out on arrival) – to progress my thesis/ albatross around my neck; an espresso and a bite in the Brownzy French Cafe, then caught a bus to see the 'Michelangelo – a Different View' – climbing the rainbow stairs to Aotea Centre, having walked down from the bus-stop outside St Matthews Anglican Church (a liberal/ progressive parish).  I had the good fortune of seeing the Sistine Chapel in the flesh twice before, but it is a great taste for those who have not.

Times have changed, for the better where people may be themselves and help advance society, without being subjected to discrimination which is no longer condoned on a societal and even legislative level: except – it has to be said, in churches (the Human Rights Act 1993, ss 28,38 caveat again). 

My personal desire is for sexual orientation to become irrelevant in matters of ordination and marriage: excellence in theological knowledge, (priests), spousal commitment to each other and the family - more conservative for believers in that respect, leading a Godly life (priests), knowing Greek, Latin and Hebrew (sorry – that last one is old school Scots: jokes).  Rigidly enforced rules and stipulations do have a way constraining and undermining the force and power of the gospel. After all, "God is love" (1 John 4:16).

Move on to the next evolution to enrich society–  e.g.: other differences which are presently inadequately understood: the intricate spectrum of mental and neural health conditions, but that is for another day.  Mike King, please get cracking.  The scrapping is like marination – it makes it all the tastier when success comes. 

Back on track, I set out a wee chart which provides some ideas for both sides arguing on the gay cleric/ priest/ minister (and by extension marriage) issue.  The idea is moving from the specific denomination (the Anglican Church – a hierarchical ecclesiological polity) to a hybrid Presbyterian congregational-hierarchical (presbyterian) ecclesiological polity.

Possible ways forward/ outcomes: The Gay Priest issue (Anglican Example)

Status of Gay Priest issueProponent of changeOpponent of change
Core DoctrineIf a doctrinal change is sought, there must be a right within the Anglican church contract to amend, and if so, the proponent(s) must follow the procedure strictly.  If there is no power to change, carry on, as usual, focusing on interpretation being the option for progressive change or leave the church and start another version with a doctrine more palatable to them.Power to amend The opponents should question (a) the ability/power to change (b) the method of change.  Rely on the Human Rights Act 1993 ss 28, 38 caveat.   No power to change Question the interpretation (may have taken the form of a lesser compromise perhaps) as a breach of the purpose trust.
Subordinate doctrineRisky: untested argument, seek to change as per contract only, (below) needs good consultation with members (in order to win hearts and minds to view at worst the church’s position is subordinate doctrine).  Would need a clear majority. Negotiate over time to retain membership and avoid positional “politics” and its divisiveness.Oppose as per Core Doctrine opposition, combine with Contract only opposition.  An improper purpose claim might be stronger here than (below) in the contract only argument but tempered by human rights interpretations in favour of change: ability to manifest a sexual preference is a “civil right” cf. doctrinal veracity.  Outcome is unpalatable: very divisive.
Contract onlySimply use the amending power within the Anglican Church Contract and follow the procedure strictly.No clear right to oppose save for exercising voting power under the Anglican Church Contract.  Hard to win a breach of doctrine claim or improper use of actual power claim. Members may choose to stay or choose to leave.

Fictional Facts:

Moving away from the strict confines of the table above (which still has application outside the Anglican Church, i.e.: generally) - a hierarchical denomination with centralised or nationally based trustees who held all the denomination’s landed property decided to bring the church’s congregations in line with the majority of secular society’s thinking on whether gay priests should be able to be ordained, conduct church services, consecrate marriage and be gays themselves. 

A group in the church was highly critical of the move, but the amendment passed the consultation approval stage of the local churches and moved to the biennial national meeting.  The members present at the national meeting followed due process, as the earlier consultative discussion series had done.

The vote was taken at the national denominational meeting and the constitution was altered.  The group who refused to accept the amendment, maintained it was contrary to doctrine (there was no question of the procedural propriety).

A claim was filed in the High Court at Wellington.  The parties agreed that there would be a preliminary issue of law argued as to the content of the doctrine: the question was, did the churches’ rules and doctrine prohibit gay priests and the blessing or consecration of gay marriages?  The parties agreed to progress with the preliminary issue of law under High Court Rules r 10.5, but the Court declined to do so as the doctrinal issue and the practical outcome were inextricably linked.[1]  However, an order was made under High Court Rules 2016 r 10.4 that the cause of action for specific performance ought to be heard first on a liability not quantum basis.[2]

In this way, the effect of the outcome of the litigation on the portfolio of properties might be resolved and a sensible resolution had.  For example, after the “liability” ruling, the group opposing amendments might be deemed to be protesting about the internal processes of the Church.  While the church’s processes were procedurally correct, there must be a starting assumption as to whether (a) the contract including the doctrinal purpose trust was silent on the issues of gay marriages and gay ministers.  Therefore, it is the adoption of doctrine, or even, on a bullish approach, moving forward permitting gay ministers and marriage,[3] without any adoption or amendment; (b) the contract including the hub and rim sufficiently capture a prohibition on gay ministers and marriage to make amendment necessary.  The key issue being whether the doctrine was core or inner doctrine or conversely outer circle doctrine and thus capable of being amended.

Issues at play:

The counsel for the parties would need to consider how the contract deals with the dispute.  The contract and doctrinal purpose trust’s deed (as a standalone document if it exists in this form, or as an amalgam of documents) should jointly determine the outcome from a doctrinal standpoint.  To convene such a trial is likely to be a double-edged sword, both deemed not to be a distinctly unfortunate situation but also a forensic examination of doctrine and core principles.[4]

Other options might be arbitration, before a hand-picked panel of learned theologians, scholars and lawyers.  However, with an ability to appeal to the High Court, confidentiality as a key factor may be lost in any event.  An arbitration would provide speed and potentially theological expertise for arbiters that could be handpicked. and this writer suggests that an arbitral panel may be better suited to dealing the second half of the litigation: namely dealing with the property once the outcome is known.

ProblemSuggestionRelevant cases (abbreviations used)
Is there a power to amend doctrine (or arguably simply state the position) within the contract, or even such a power in the doctrinal purpose trust providing a power to amend? Does the Trusts Act 2019 apply?One must first work out what the doctrine says.  It may be difficult to argue whether it is an inner doctrine or outer doctrine, but, if it were outer doctrine (or subsidiary doctrine – the Barton  formula [see the final footnote below]) it would be easier to amend. Breakaway members would not be able to use church facilities unless they were tenants.  It may create a radical restructuring and change of mission and focus in a church of possibly dwindling numbers.Barker[5] Overtoun[6] Peilua (1) & (2)[7] Matamu (1) & (2)[8] Reupena (3)[9] ShergillF[10] Gay and Lesbian[11]
What are the requirements of the amendment?  To be a valid amendment the terms of the amending power need to be strictly complied with.Strict adherence to process is essential for a valid amendment.  There is no inherent power in the church or the Hub – Table 2. One must draft the terms of their governing purpose trust deed wisely.351F[12]Barker[5] Overtoun[6] Peilua (1) & (2)[7] Matamu (1) & (2)[8] Reupena (3)[9] ShergillF[10] Gay and Lesbian[11]
There is a need to identify the terms of the contract and especially the “Hub”.The terms of the contract should not be ultra vires or at odds with the terms of the doctrinal property trust.  However, it might be arguable that the terms of the contract are subsidiary as they relate to the gay issues raised in the hypothetical facts.Palu[15] Scandrett[16] Craigdallie (1) & (2)[17]
Is the doctrinal position on gay ministers and weddings a major point of doctrine for the church or a subordinate one?An important issue: is it able to be amended?Barker[18] Palu[19] Maungatapere[20] Gay and Lesbian[21]
Is it justiciable?Yes, on either Marshall/ Mabon or the contractual basis: civil rights, rights to remuneration abound. A massive headache for New Zealand Courts but also a challenge and opportunity for the Church. Precise expert evidence will be needed.Shergill[22] Palu[23] Wylde[24]
What would the contract include?The doctrinal purpose trust (and are specific direction to honour it), Historic creeds, Ecclesiological polity,Constitution of the church,Duly made policies and procedures (limited use, especially if they may be altered),Scripture.   Majority rule is not especially relevant but as a church needs members, it would wise for this to be taken heed of: but not at the expense of lawful amendment/ or doctrinal evolution.  If there is no doctrinal position for or against gay priests or gay marriage, it is a question of a declaration of validity at the “adoption” of the new term of the constitutional book.  Pasifika members’ customary law would not necessarily feature if it was contrary to the wording of the constitution and if the due process of representative voting occurs.Matamu (1)[25] Reupena (3)[26] Shergill [27] Gay and Lesbian[28] Inglis[29]

Other churches such as the PCANZ and the Anglican Church (to date) have confronted the Gay Priest issue in an internal manner rather than a litigation context. It does seem very difficult to identify the precise doctrinal positions in some mainstream churches. The PCANZ, for example, has attempted to solve the issue by a vote in the General Assembly of the PCANZ: which presently prevents the ordination of homosexual ministers, beyond those who were already ordained in 1996 or earlier. [30]

Under the church contract as argued for, adhering to the terms of the doctrinal trust is a crucial element of keeping to the contract. However, one must dig deeper into the trust itself and under the Presbyterian Church Property Trust Act 1885 the basis for property holding is clear.  That ought to be read in the Presbyterian example, with a Book or Order and what is contained therein which links to the Westminster Confession and includes the Barrier Act 1697 elements.  It appears there is no clear doctrinal position on the right of gay ordinands to become ministers and practise in the usual clerical way.  It is the decision of the General Assembly as to how this issue is dealt with.  The General Assembly has taken a range of varied positions over the last thirty years, indicating that the matter is not an immutable doctrinal standard.  The Barrier Act 1697 will need to be adhered to for any amendments to be made to the Book of Order.  The core part of the Barrier Act reads:

“…for preventing any sudden alteration or innovation, or other prejudice to the Church, in either doctrine or worship, or discipline, or government thereof, now happily established; do, therefore, appoint, enact, and declare, that before any General Assembly of this Church shall pass any Acts, which are to be binding Rules and Constitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and, being by them passed as such, be remitted to the consideration of the several Presbyteries of this Church, and their opinions and consent reported by their commissioners to the next General Assembly following, who may then pass the same in Acts, if the more general opinion of the Church thus had agreed thereunto.”[31]

It has been argued that doctrine may at times be permitted simply to evolve.[32] This is an essential position, argued in John Henry Cardinal Newman’s “Essay on the Development of Christian Doctrine”.[33]Some matters of doctrine can develop over time, and this principle recognises the contractual interpretation model of interpreting religious bodies’ rules but it is an exception to the regular rule of only being able to amend the doctrine by prescribed amending procedures in the church contract.  The contract theory includes the ability to recognise and adapt doctrine to the need for continual development in practices within the life of the religious association. [34] In that strict model doctrinal developments might only occur within the parameters of the powers of amendment within the church contract, noting the absence of an inherent amending power. It is arguable this prohibition on inherent change might only apply to the “inner circle” principles of doctrine. [35]

There is much wisdom in permitting some licence to parishes with different theological focii and ethnicity of members, to worship if doctrinal differences can be tolerated.

I hope this helps some and foments some debate.  I am a big fan of open source (like nzlii.org) – although this might be more open “sauce”, in the best sense – to add new tastes and a changed-up heart beat.  Apologies to Taika and the Hunt for the Wilderpeople, but my view of Christianity is “leave no (Christian) behind”, conservative, liberal, progressive, traditional – led the Spirit move your spirit. Stay in Church!

I am not educated enough in interreligious matters to comment, but assume these butchered thoughts may apply to other faiths too.  In the Laws of New Zealand Religion and Religious Institutions which I edit, we are moving to having a guest author from different faiths do a chapter (Dr Amir Bastani has started with Islam) which may or may not develop such themes as outlined herein – but, the law rather than opinion will be stated.  Should any one wish to volunteer (Judaism, Sikhism, Buddhism, Shintoism, humanism, atheism/ agnosticism – others) – please contact me at richard@maxweltonchambers.co.nz . I wish to understand authentically the bargains struck (or not struck) by your religious associations.


[1] All Seasons Properties Ltd v Smith (Court of Appeal, CA 151/96; 28 May 1997); Wilding v AG [2003] 3 NZLR 787; Tilling v Whiteman [1980] AC 1, Haden v Attorney-General (2011) 22 PRNZ 1 (HC); Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010.

[2] HCR 2016, r 10.4 Court may order separate trials when justice requires, the court may order separate trials of causes of action and it may also direct the sequence of the separate trials and make any supplementary order that is just

[3] Any previous rulings of the national church meeting would have to be properly dealt with to enable this approach to be followed.

[4] Shergill v Khaira [2014] UKSC 33; [2015] AC 359.

[5] Barker and Another v. O'Gorman and Others [1971] Ch 215.

[6] General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515.

[7] Peilua v The Evangelical Samoan Wesleyan Methodist Church of Otahuhu Board HC Auckland CIV 2006-404-2441, 17 June 2007; Peilua v The Evangelical Samoan Wesleyan Methodist Church of Otahuhu Board (no. 2) HC Auckland CIV 2006-404-2441, 16 November 2007

[8] Matamu & Others v Si’itia & Others [2016] NZHC 2516; Matamu v Si’itia [2017] NZCA 482 [2018] NZAR 348

[9] Reupena v Senara [2017] WSCA 1; [2017] NZAR 763.

[10] Shergill v Khaira [2014] UKSC 33; [2015] AC 359.

[11] Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland (2013) 9 HRNZ 612.

[12] The “doctrinal purpose trust” in this article is the central core component of the bargain, containing the object clauses and the parameters of doctrine.  The church property is held in accordance with the terms of this trust, i.e.: the property is made available for use (being the advancement of religion in this manner) by members and invitees in terms of the practices, tenets, and principles of the church. Defining these may be a difficult challenge. The charitable nature of the religious trust is measured by an examination of the terms of the trust deed, or of a coherent and credible proof of the founders’ intention if no written terms exist. Where there is no written trust deed available, this creates difficulty. The intention of the founders need to be ascertained from the extrinsic material. The problem with a missing trust deed is that there is no evidence of inherent power or implied authority to alter the terms of the trust.119F119F[12]  The conduct of the party, which to date is provable, will have to be relied on.  The absence of a trust deed ought not to be such an issue for modern churches.

[13] General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515.

[14] Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland (2013) 9 HRNZ 612.

[15] Palu & ‘Akau’ola v The Conference of the Methodist Church of New Zealand & The Board of Administration of the Methodist Church of New Zealand HC Auckland Civ-2001-404-1870 23 July 2003 O’Regan J.

[16] Scandrett v Dowling (1992) 27 NSWLR 483

[17] Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601; Craigdallie v Aikman (1820) 4 ER 435

[18] Barker and Another v. O'Gorman and Others [1971] Ch 215.

[19] Palu & ‘Akau’ola v The Conference of the Methodist Church of New Zealand & The Board of Administration of the Methodist Church of New Zealand HC Auckland Civ-2001-404-1870 23 July 2003 O’Regan J

[20] Sime & Others v Maungatapere Community Church (Inc) & Others HC Whangarei CIV2016-488-121 8/9/2017,

[21] Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland (2013) 9 HRNZ 612.

[22] Shergill v Khaira [2014] UKSC 33; [2015] AC 359.

[23] Palu & ‘Akau’ola v The Conference of the Methodist Church of New Zealand & The Board of Administration of the Methodist Church of New Zealand HC Auckland Civ-2001-404-1870 23 July 2003 O’Regan J,

[24] Wylde v Attorney-General for NSW (1948) 78 CLR 224.

[25] Matamu & Others v Si’itia & Others [2016] NZHC 2516.

[26] Reupena v Senara [2017] WSCA 1; [2017] NZAR 763.

[27] Shergill v Khaira [2014] UKSC 33; [2015] AC 359.

[28] Gay and Lesbian Clergy Anti-Discrimination Society v Bishop of Auckland (2013) 9 HRNZ 612.

[29] Inglis v Dunedin Diocesan Trust [2011] NZAR 1.

[30] It is not a doctrinal standard on this evidence, more the evidence of a “conscience” vote arising from the contract (which empowers members how to vote). This position is not entrenched in the mode outlined by Megarry J, who differentiates entrenched “inner circle” doctrine and just regular doctrine (which is implicitly changeable): Barker and Another v. O'Gorman and Others [1971] Ch 215.

[31] See “The Barrier Act 1697” The Church of Scotland<http://www.churchofscotland.org.uk/about_us/church_law/barrier_act>(accessed 13/5/2018).For an example of the Barrier Act process in play, see a description of the events of the 2006 General Assembly (from a Methodist standpoint): Julia Stuart “Presbyterians Adopt Strict Rules for Ordination” (November 2006) The Methodist Church of New Zealand <http://www.methodist.org.nz/touchstone/lead_articles/2006/november_2006/pcanz_ordination> [accessed 2/12/2017]. See further: Francis C Lowell “The Free Church of Scotland Case” (1906) Columbia Law Review Vol 6 137 at 154.

[32] M Ogilvie “Ecclesiastical Law — Jurisdiction of Civil Courts - Governing Documents of Religious Organisations: Lakeside Colony of Hutterian Brethren v Hofer” (1993) 72 Canadian Bar Review 238

[33] John Henry Cardinal Newman, “Essay on the Development of Christian Doctrine” (1878) See: http://www.gutenberg.org/ebooks/35110 (accessed 2/9/2018).

[34] Attorney-General v Pearson (1817) 3 Mer 353.

[35] Barker and Another v. O'Gorman and Others [1971] Ch 215: The core v ancillary doctrine:  if the impugned doctrinal point was a matter of core doctrine, it would be difficult to amend. The issue here is that if doctrine can be deemed to be subsidiary, it may be able to be altered or removed from the church’s doctrine.  If an aspect is part of core doctrine, it would be well-nigh impossible to amend. However, if the doctrine is a subsidiary point, it may be varied, “formulated, interpreted or modified” under the contract.  Strict fidelity to the amending power under the church doctrine is crucial.  See also the formula of Dr George Barton QC (late, great Presbyterian of Ohope):

Dr. Barton QC’s formula as described and referred to herein provides a logical deduction model as to how to analyse whether an amendment to doctrine is theoretically permissible.  The core elements of the Barton formula follow:

  1. Let it be assumed that property is held for the purposes of Church X.
  2. Church X has standards:476F[35]
  3. A + B + C are supreme.
  4. D + E + F are subordinate.
  5. P + Q + R are doctrines that are not within A + B + C/ D + E + F.479FChurch X has power to formulate, interpret, or modify D + E + F but always in agreement with A + B + C and the fundamental doctrines contained in D + E + F.
  6. The Church is the sole judge as to whether there is such agreement.480FChurch X interprets or modifies D + E + F and, in doing so, declares that such interpretation and modification are in agreement with A + B + C and the fundamental doctrines contained in D + E + F.
  7. Let it be assumed that a question arises after such interpretation and modification as to whether the property of Church X continues to be held for the purposes of Church X in accordance with its supreme and subordinate standards.

7.         If such question were to be litigated, a court would give great weight and pay great  respect to the assessment of Church X that the interpretation or modification was in agreement with A + B + C and the fundamental doctrines contained in D + E + F.

8.         BUT, if on a consideration of all the circumstances, including the declaration by Church X that there was such an agreement with A + B + C and the fundamental doctrines contained in D + E + F, the court concludes that the new formulation or interpretation is NOT in such agreement, then it will declare that the property of which the Church is the legal owner is no longer being held on the trusts for the purposes of Church X.

Dr Barton QC gave his opinion for The Otago-Southland Business Committee to my Dad and Dad passed it on (and other lessons – like knowing a good ref from a bad one – Clive Norling was excellent – he let the game flow and reffed to the spirit of the game – Bill Harrigan was a good one in League, but Dad didn’t much watch that.  His loss).