THINKING ANGLICANS

civil partnerships: Ecclesiastical Law Journal article

The Ecclesiastical Law Journal is published by the Ecclesiastical Law Society. The January issue contains an article entitled The Civil Partnership Act 2004, Same-Sex Marriage and the Church of England by Jacqueline Humphreys, Barrister.

The Editor of the Journal, Mark Hill, has given his permission for this copyrighted article to be reproduced by Thinking Anglicans, and you can read it in full here.

In an editorial in the magazine, Chancellor Hill comments on the article as follows:

Jacky Humphreys offers a detailed critique of the Civil Partnership Act. The Act will have a profound effect on our collective understanding of society. Her article merits thoughtful reflection. I have the misfortune of differing from her in one minor but significant respect. I do not consider that the existence of a civil partnership carries with it by implication the inference that it is a sexual union. Far from it — the partnership is financial in nature dealing with joint ownership of possessions and rights of inheritance. I would therefore consider any enquiry of a civil partner into the nature of his or her partnership to be unacceptably intrusive and a breach of the right to respect for one’s private and family life.

It seems pretty clear that the House of Bishops Pastoral Statment accepted Chancellor Hill’s view that a CP is not necessarily a sexual relationship. It is to be hoped that all bishops will also heed his view of the Human Rights consequences that follow from such a position.

The section of the article to which Chancellor Hill’s comment relates can be found here. However, it pays to read the whole article right through.

Following a detailed comparison of Marriage and Civil Partnership, the author concludes that:

In my view, the 2004 Act has an understanding of civil partnerships that are voluntary, permanent, sexual, monogamous, potentially mutually supportive and potentially nurturing of children in the same ways that a marriage is understood to be within English law. A civil partnership is probably also understood as requiring sexual fidelity in the same way marriage does, although confirmation of this will only be obtained once judicial implementation of the provision takes place. In these ways then, civil partnerships are conceptually the same as marriage.

The key conceptual difference between civil partnerships and marriage is that one is essentially same-sex and the other is essentially opposite-sex, with the corollary that children cannot be conceived naturally by the partners. There are some practical differences in law relating directly to that physiological difference, namely the absence of provision regarding non-consummation and adultery and, in the usual run of things, the conception of children. Therefore whether it is correct to regard civil partnerships as same-sex marriage depends on whether one regards those aspects of marriage that are the same as civil partnerships—voluntary, permanent, sexual, monogamous, mutually supportive, nurturing of children and probably sexually faithful—as more or less vital to the definition of marriage than the key difference, which is the sex of the persons entering the status. Is heterosexuality the essential conceptual component of marriage, or is the term ‘marriage’ in danger of becoming cheapened by this narrow focus on the gender of the participants?

The third part of the article deals with several specific practical issues: Clergy Discipline and Employment, Occasional Offices, Blessing Services, and the Admission to Communion of Notorious Offenders.

Her concluding section is reproduced below the fold.

Conclusion

As can be seen above, civil partnerships are in all important respects the same as marriage in terms of practical legal effect. Civil partnerships also share the overwhelming majority of the conceptual understandings of marriage that exist within English law. The key difference is, of course, the gender of the participants. The Civil Partnership Act 2004 does not, in any practical sense, undermine marriage. It does not change marriage law save for a very few technical details and does not change the legal consequences of marriage at all. The provision for gay and lesbian couples in civil partnerships is in almost all contexts the same as for married heterosexual couples. It is not better than for married couples. Therefore there is no sense in which the State support for marriage has been eroded. Nor is there any sense in which the status of marriage has become second best to civil partnerships. So in neither of these senses can it coherently be maintained that civil partnerships ‘undermine marriage’.

Further no coherent case has yet been advanced as to how a couple of the same sex living together in a voluntary, permanent, faithful relationship in any way makes another couple’s marriage more likely to break down. It is difficult to see how one couple’s marriage undermines another couples’ civil partnership, or vice versa. In fact the introduction of a marriage-like status for couples for whom traditional marriage is not an option is rather affirming of the status, rights and responsibilities of marriage. These are seen as such a good thing that more couples should have the opportunity of sharing in them.

What this Act does do, however, is challenge the a priori belief, held by some in the Church, that the social goods of marriage can be experienced and manifested only by heterosexual couples. Whether this belief is true is an empirical question. However, the evidence to determine whether or not same-sex partnerships can achieve the social goods of marriage will now be in the public domain. It will be interesting to see over time how the failure rate for civil partnerships compares to the high levels of divorce in heterosexual marriage.

Further, the fact of legal recognition of these relationships is likely to promote the general belief already widespread in society that gay partnerships can be just as stable, faithful, life-affirming, joyful and loving as heterosexual marriage can be. Therefore those in the Church who wish to maintain that homosexual partnerships are on scriptural or theological grounds a less good thing than marriage—or more bluntly that such relationships are sinful—will have to engage directly with this ‘best’ form of gay relationship. Cheap shots at gay promiscuity will not win the argument. For society and more liberal people in the Church to accept the conservative view that same-sex sexual activity is always wrong, the conservatives will have to show why the faithful sexual expression of love within this form of relationship, which looks remarkably like a marriage, is necessarily wrong. Therefore there is hope that the passing of this piece of legislation will force the Church to improve the quality of its debate on this issue.

© 2006 The Ecclesiastical Law Society

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k1eranc
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k1eranc

Just what is the precendent for assuming that the ability to conceive children is part of the legal definition of marriage? Why does this whole discussion keep coming back to begetting children?

Sean Doherty
Guest

That is a very poor reading of what she says. In fact, elsewhere in the article she says: “Whilst the conception and nurture of children is seen as one of the goods of marriage within Christian doctrine, in neither Christian doctrine, nor the law of England, is the conception or nurture of children a prerequisite of a valid marriage.” So it is not part of the definition of marriage but her point is rather that it is one of the very few differences in the eyes of the law between a marriage and a civil partnership, being a fairly obvious… Read more »

Simon Dawson
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This site is visited by people from both sides of the debate about the proper attitude to homosexuality and civil partnership. Perhaps I could, in all humility, attempt some dialogue across the divide so I can increase my own understanding. There are two opposing views. In a recent ad clericum +Nazir Ali said “it is in its careful mimicking of marriage that the [civil partnership] Bill can be said to undermine the distinctiveness and fundamental importance to society of the relationship of marriage”. This mirrors a commonly stated thesis that civil partnership damages christian marriage. By contrast, in a more… Read more »

Dave
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Dave

Dear Simon, I don’t think that the argument that CPs mimicking marriage “harms the distinctiveness and fundamental importance to society of the relationship of marriage” is the key argument against an anglican Christian entering into a CP *that involves sex* (or any form of homo-sexual relationship for that matter). The key issue is that homosexual sex is sinful; according to GS 1988, the HoB 1991, Lambeth 98, and the Primates Meeting 2005 and the ACC 2005. Individualism and the liberal humanism “rights” mentality has in my view harmed the institution of marriage, and individual marriages, much more that the provision… Read more »

Ruth
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Ruth

Simon there are no reasons and everyone knows it. God bless you.

simon dawson
Guest

Dave, Thanks for your thoughtful response. In fact I agree with a lot of what you say. I can understand the logic of the argument that says that from a Christian viewpoint homosexual sex is sinful. I don’t agree with that statement. I believe it represent a mistaken view of the relationship between Old and New Testament moral teaching. Nevertheless I can see where that argument comes from. What I don’t understand, and am asking for comments on, is the argument that says that CP damages marriage. Where does that argument come from within Christian teaching? I agree with you… Read more »

mary
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mary

For those of you entering into Civil Partnerships: John Boswell’s Book: Same-Sex Unions in Premodern Europe (1994)has some beautiful Same-Sex Blessings at the end of it. Here are two Greek ones: O Lord our God, who made humankind in your own image and likeness and gave them power over all flesh, and who approved your saints and apostles Philip and Bartholomew becoming partners, not bound together by nature, but in unity of spirit and by faith, you who did consider your saints and martyrs Serge and Bacchus worthy to be united, bless your servants, N. and N., joined not by… Read more »

Barry Makin
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Barry Makin

The Civil Partnership legislation is very specific in the legal distinction between Civil Partnerships and Marriage. Marriage is a lawful impediment to Civil Partnership and Civil Partnership is a lawful impediment to Marriage. What is so serious is that the word Marriage is being constantly used by the written and broadcast media to describe a Civil Partnership.The “Sun” on 2nd Feb carried a front page banner headline of “Exclusive: First Gay Soldiers’Marriage” and the extensive story included phrases such as “wonderful to get married”, “Vanessa proposed marriage”, “asked me to marry her”, and then had a phone in number for… Read more »

Dave
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Dave

Dear Simon, Yes it’s nice to be able to appreciate each other’s views, even if we can’t agree. Having said that homosexual sex is sin effectively wipes it out as something that can be blessed or approved of (to me) of course. I keep mentioning that I have friends who have homosexual orientation – some choosing to remain celibate, some in partnerships (may even be “married” as they live in Belgium) – havent seen them much since we met up on holday in Italy the other year. But then we have friends who are divorced and remarried, living together outside… Read more »

simon dawson
Guest

Thanks Mary, Don’t forget that Same Sex Blessings have been banned by the Bishops now, so those blessings can’t be used. But we are allowed to enter into civil partnerships however, so how about using this one, also from Boswell, a partnership agreement betwen two priests in Lombardy in the eighth century. “In the name of God. In the third year of the reign of our lord, Charles, the King of the Franks and Lombards, when he began to rule Lombardy, on the eighth of the kalends of July, in the fourteenth indiction [776 C.E.]. Be it known that I,… Read more »

Merseymike
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Merseymike

Barry ; I think the reality is that most people do not associate marriage with anything to do with religion these days, and that civil partnerships will undoubtedly become known, officially, as civil marriage, in time.

What religionists choose to do is their business but in turn they should keep their nose out of civil marriage which is explicitly free of religious interference.

I don’t want the church involved in my civil partnership/marriage. Why have a homophobic institution involved in my special day?

Peter Bergman
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Peter Bergman

Boswell’s work on ‘adelphopoiesis’ is wishful thinking and tendentious special pleading that has convinced no serious historians of the Middle Ages. ‘Ritualized kinship’ or ‘brother-making’ is the subject of these rites, not ‘gamos’; ‘frater’ does NOT mean ‘sexual partner’. See this refutation of Boswell’s claims:
http://www.learnedhand.com/shaw_boswell.htm

Merseymike
Guest
Merseymike

Its irrelevant anyway. This is the 21st century – the social mores of past generations are of no import.

Göran Koch-Swahne
Guest

I am a bit puzzled as to this idea of marriage being “sacramental”. To the Lutheran tradition and to the Church of Sweden (not as Lutheran as some think) marriage is a c i v i l institution, not a religious one, having to do with Creation, that is with all, not some. “There is not one marriage for the Christian and an other for the Turk”, as Dr Martin Luther puts it in his characteristic manner. It should be noted that up to the hostile take-over of the Church by the Absolutist State in 1686/1687, it was the Diocesan… Read more »

badman
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badman

Barry Makin writes: “This illegal mis-use of the word Marriage is extremely offensive to all who hold the sacrament of marriage as holy. It is a creation ordinance, and the word cannot be re-defined. Yet gay couples are determined that eventually the word will be applied to them… The Government and the Church need to come out strongly now to ban the use of the word marriage in any context relating to Civil Partnerships. “ Secular marriage existed before Christian marriage. The church can refuse church weddings, but it cannot stop marriages existing under other auspices. The Church has approved… Read more »

badman
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badman

Peter Bergman writes: “Boswell’s work on ‘adelphopoiesis’ is wishful thinking and tendentious special pleading that has convinced no serious historians of the Middle Ages. ‘Ritualized kinship’ or ‘brother-making’ is the subject of these rites…” Some civil partners will choose not to engage in sexual activity – perhaps because they accept your point of view that such activity is incompatible with scripture. Would you approve of such partnerships? Or, to approach it from another angle, do you approve of ‘Ritualized kinship’ or ‘brother-making’? If not, what is wrong with it? If so, are you happy for there to be accompanying religious… Read more »

Martin Reynolds
Guest

Barry Makin observes accurately how the media are reporting Civil Partnerships. His remonstrations are shared by many gay people who are unhappy to see their CP’s described as a marriage. While some (like Dr Mike!) say that it is, many, for a variety of reasons see CP’s as different even if they do enjoy the same legal protections. Jacqueline Humphreys makes an interesting contribution to this debate as does Chancellor Mark Hill in his gentle (but withering) editorial comment. In my own case our upcoming CP was headlined “ ….. to Wed ….” and careful comments we made to the… Read more »

Simon Dawson
Guest

Peter, Your comment invites several responses. The first being that John Boswell, who was the A. Whitney Griswold Professor of History at Yale University, should be regarded as a serious historian himself. In his writings Boswell acknowledges this is a difficult area. Scholars who are sympathetic to homosexuality will see relationships such as the ones in these documents as probably sexual, in addition of course to being loving, mutually supportive, lifetime friendships. Scholars with the opposite view of homosexuality will read a different context into the same documents. If you were to look at the huge amount of writen documentation… Read more »

Peter Bergman
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Peter Bergman

Simon: so what? Hugh Trevor-Roper is an eminent historian as well and that didn’t stop him making a major boo-boo. The fact remains that Boswell’s book, based principally on three obscure texts from the eastern Mediterranean in the Middle Ages and an awful ot of special pleading, has not convinced scholars that ‘homosexual marriage’ ever existed as a church-sanctioned institution. It’s one of those cases of someone seeing what he wanted to. Read Shaw’s review carefully; I think you’ll find it’s representative of what just about all medievalists had to say about the book.
A ‘brother’ is NOT a sex partner.

RMF
Guest
RMF

Simon said,

“….John Boswell, who was the A. Whitney Griswold Professor of History at Yale University, should be regarded as a serious historian himself.”

Professor Boswell’s reputation and rigorous scholarship are undisputed. He was a very, very distinguished historian of religion and of the medieval period, one of the very finest if not THE finest of his generation. He was a reknowned scholar.

To say that he is not taken seriously by medieval scholars is very erroneous.

Göran Koch-Swahne
Guest

Peter Bergman wrote: “The fact remains that Boswell’s book, based principally on three obscure texts from the eastern Mediterranean in the Middle Ages and an awful lot of special pleading, has not convinced scholars that ‘homosexual marriage’ ever existed as a church-sanctioned institution.”

But he doesn’t say it did. Boswell talks “only” of “same-sex unions”. The word gay marriage is not used. You are the one who says it’s (not) “homosexual marriage”.

So it is about Partnerships. Whether “sexual” or not, only those involved can know.

Just like the English Civil Partnerships ;=)

RMF
Guest
RMF

Peter said, “has not convinced scholars that ‘homosexual marriage’ ever existed as a church-sanctioned institution.” Is he arguing that they were church sanctioned, or that they occurred, and in some churches? Mind you I am positioning from memory, as it has been many years since I have looked at the work, but I do not recall that the issue was how high up the food chain per se, the ceremonies were sanctioned. Churches often perform ceremonies or masses or blessings in contravention of a particular policy or proclamation because the people and clergy at a particular one do not agree… Read more »

Peter Bergman
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Peter Bergman

Goran: a distinction without a difference. I meant of course a sexually active ‘same-sex union’, which is what Boswell meant as well.

RMF: I mean ‘recognized by synods, councils, episcopal hierarchies etc’ – however something is recognized by the Church at large as being ‘de fide’. Obviously some local action without synodical or episcopal approval is hardly representative.

Tobias S Haller BSG
Guest
Tobias S Haller BSG

Peter Bergman appears to assert that fraternal language (“brother”) excludes spousal relationship (“sex partner”). On the contrary, the tradition records the use of fraternal language within spousal relationships, perhaps the most famous being the bridegroom’s address to “my sister, my spouse” from the Song of Solomon chapters 4-5. Boswell’s assertion that the rites of brother-making were used by some people (even if the church did not intend them as such) as a means to celebrate a spousal relationship is attested by independent sources, some of them predating Boswell’s work. I first came across a mention of this phenomenon in an… Read more »

Peter Bergman
Guest
Peter Bergman

Tobias Haller: not quite right. The Song of Solomon says (4.9, 10, 12; 5.1): ‘My sister, bride’ (‘ahoti callah). Your mistranslation ‘spouse’ misses the fact that ‘callah’ is a feminine noun and purely female in reference. It can’t mean ‘husband’. (And I don’t have to mention that SoS is a flagrantly heterosexual book!) It is never used by a male to a male. ‘brother’ and ‘sister’ are used in ANE poetry between lovers, included married lovers, as an indication of the closeness of their bond, but that bond is male-female. Your anecdote only illustrates how people will distort an institution.… Read more »

Göran Koch-Swahne
Guest

Pter Berman wrote: “I meant of course a sexually active ‘same-sex union’, which is what Boswell meant as well.”

You wrote “homosexual marriage”, not “sexually active” union.

Surely, what Boswell says is that these were both?

badman
Guest
badman

Peter Bergman, Do I take it that you have no objection to lesbian civil partnerships, even if sexually active? There is no condemnation of lesbian relationships in scripture, is there? I also wonder if you are going to answer my question above: Some civil partners will choose not to engage in sexual activity – perhaps because they accept your point of view that such activity is incompatible with scripture. Would you approve of such partnerships? Or, to approach it from another angle, are you comfortable with ‘Ritualized kinship’ or ‘brother-making’ (to quote your characterisation of the historical precedents discussed by… Read more »

Göran Koch-Swahne
Guest

A pre-modern society is composed of Households of different social standing (power). A number of biologically (or politically) related households form a household group, a Clan. In this dis-Society of kinship, anyone who does not belong to a House is an outsider, whence the repeated insistence of Deuteronomy on Hospitality towards “the Levite, the poor and the stranger”. The Household consists of the Husband; his several wives, eldest son, sons, brothers, brothers in law, uncles, cousins, their wives, daughters, children and slaves. All members of a Household stand under the tutelage of the Husband, who has absolute power over them,… Read more »

RMF
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RMF

I think it a bit tough to say, on the one hand, that these ceremonies didn’t happen because they weren’t “church sanctioned”–but they did happen. The point is not either that they are representative, or normative for the time–simply that they occurred. I also think it tough to say that because the two people called themselves brother or sister, the point of it all was just to ensure to the other property and “security.” None of this requires a a ceremony. It can be done with a piece of parchment. The ceremony adds another dimension to it that makes it… Read more »

Peter Bergman
Guest
Peter Bergman

badman: Scripture probably does refer to lesbianism in Romans 1.26, and even if this interpretation was uncertain, analogical reasoning (gander and goose) would condemn it. Remember that Scripture nowhere condemns pedophilia. A domestic partnership that extends legal rights, protections and duties to people who share a home and have mutual care of each other is something I generally agree with. Many of the people who would benefit from this (siblings, other family members)are explicitly excluded from civil partnerships by British law. Not just, I think. Finally, does ‘ritualized kinship’ or ‘brother-making’ (= adoption into a family relation)actually exist today and… Read more »

Merseymike
Guest
Merseymike

They are excluded at present because civil partnership aims to give legal parity to same sex partnerships as they are viewed by the State as equivalent (but different) to marriage. The main difference being they are same sex not opposite sex.

That is reasonable because the State is not there to recreate the social mores of the first century and before which the bible reflects.

badman
Guest
badman

Thank you for your answer, Peter Bergman. I infer from your posts that you do not, therefore, object to two men, or two women, entering into a civil partnership provided there is no sexual activity in the partnership? And even if they are homosexual?

simon dawson
Guest

Peter bergman asks “Finally, does ‘ritualized kinship’ or ‘brother-making’ (= adoption into a family relation)actually exist today and why should it be the subject of a religious ceremony? And were those who tok part in ‘brother-making’ (think: Native American blood brothers!) forbidden to take wives? I don’t think so!” Peter – we have come full circle. Ritualised kinship and brother making does exist today – they are called same-sex blessings. I accept that you disagree, but those of us who hold and attend such liturgies can see similarities between what goes on today and what we see written down from… Read more »

Tobias S Haller BSG
Guest
Tobias S Haller BSG

Peter Bergman, I’m afraid you misunderstood me. I was not seeking to argue that the Song of Solomon was about a same-sex relationship! Bride is indeed the meaning of “callah” — although the KJV used “spouse” — so I will stand by that as a legitimate, and “authorized” translation! 😉 I was responding to what I thought was your assertion that fraternal language could not be used by lovers. I am glad to see you are aware of the frequent use of this sort of language in ANE love literature apart from the Song of Songs. As this is plainly… Read more »

Peter Bergman
Guest
Peter Bergman

badman: I’m sure my views don’t count for anything outside a small circle! But since you do me the kindness of asking: 1. As I understand it, the British ‘civil partnerships’ mimic marriage in every single respect and exclude ‘prohibited degrees’, though why this should be so was not made clear by the English govt.. But everyone believes it is in order to pave the way to full-blown ‘gay marriage’ with a stroke of the pen. So I consider them fundamentally dishonest in intent and structurally unjust in practice. 2. The Christian moral maxim of avoiding ‘the occasions of sin’… Read more »

Peter Bergman
Guest
Peter Bergman

Tobias Haller: I didn’t misunderstand you about SoS, but you are correct that the KJV renders ‘callah’ in that book as ‘spouse’. As ‘spouse’ is used interchangeably today for husband or wife, it isn’t a good translation today for that feminine noun. ‘Brother-sister’ language used in marriage may be odd to our modern ears but it isn’t ‘figurative incest’ except to the sexually obsessed. It simply(!) denotes intense emotional closeness between lovers, likened to the closest natural relationship a man and woman could have, i.e. to be born of the same womb. My wife is also my ‘sister’ in the… Read more »

Tobias S Haller BSG
Guest
Tobias S Haller BSG

Peter Bergman: I certainly do understand the multivalency of fraternal/familial language. People use words like “sister” “brother” “mother” “father” to describe literal family relationships, spiritual relationships, or intimate spousal relationships.

It appeared to me earlier that you were denying this multivalency. Thank you for clarifying.

RMF
Guest
RMF

I don’t think the rites that Boswell looks at should be dismissed simply because there aren’t records of more, or that there aren’t records of more being done in a church. This would suppose that every ceremony had to be recorded, or that every ceremony had to be done in a church (and then recorded), which was not the case even for marriages. After all, the rites date from a thousand years or more.

I don’t think we need to suppose either that the rites were used only for same sex blessings, only that they could be the basis for such.

drdanfee
Guest
drdanfee

What interests me in much of the discussion is that a great many comments simply hop right over the crucial issues that stem from how Christians have defined homosexual behavior as sin. This cannot help but connote a whole range of approaches to reading scripture, and drawing from what is presumed to be religious tradition; typically in favor of a new conservative Christian reading that is simply stated and restated and urged, as if it had not itself painstakingly emerged from the last hundred or hundred-fifty years or so, partly in implicit conversation with modernity itself, and partly in implicit… Read more »