Wednesday, 4 January 2012

Same-sex Marriage and Disestablishment

Iain McLean has written at OurKingdom about Same-sex marriage and the Church of England: an argument for disestablishment.

He starts this way:

The UK government has promised to launch a consultation on ‘how to make civil marriage available to same-sex couples’ in England and Wales. Note: HOW, not WHETHER. This reflects the astonishing social change in the last two decades in the UK and other liberal democracies. Surveys such as British Social Attitudes show that moral opposition to gay relationships has gone from a substantial majority to a minority in only 20 years. The Coalition is going with the flow, although not as fast as the devolved Scottish government, whose consultation on the same subject has already taken place.

This is a very difficult subject for faith communities, many of which have been left stranded; and many of which have a principled opposition to recognising same-sex relationships in their churches, synagogues, or temples. That opposition must be honoured, if religious freedom is to mean anything; but equally, so must the principles of those who do want to recognise same-sex commitments in their places of worship.

And he concludes:

… If Parliament makes same-sex marriage possible, will the obligation not then extend to offering same-sex marriage to any parishioner?

No. it cannot and it must not. As the Quakers, Unitarians, and Liberal Jews told the Lords last month, religious freedom must mean the freedom to say no as well as the freedom to say yes. Article 9 of the European Convention of Human Rights says the same thing. In England, although not in Scotland, the current proposal is to exclude religious communities entirely from the arrangements for same-sex marriage. This will predictably come under pressure if the Government’s intention to legislate for civil same-sex marriage in England and Wales by 2015 comes to pass, and/or if Scotland allows religious celebrants to officiate at same-sex marriages. But, in any such extension of permission to religious communities, there must at an absolute minimum be a conscience clause modelled on the existing ones relating to divorced or transgender people. To force unwilling religious celebrants to celebrate same-sex marriage would be deeply illiberal, and plain stupid.

But this blows English-style establishment out of the water. The courts have already ruled that a Church of England parish is not a “public authority”. This ruling was necessary to protect religious freedom. If parishes were public authorities, they would be subject to the public-sector equality duty laid down in the Equality Act 2010. They could not then refuse to marry an otherwise-qualified same-sex couple. In the interests of religious freedom, it is appropriate to insist that the Church of England is no more a public authority than is any other faith community. But then, it is imperative that it be treated in the same way, and subject to the same law, as all the others. True religious freedom does not only permit, but requires, the full disestablishment of the Church of England and the removal of its bishops from the UK’s legislature. The Church of England could remain a “national” church like the Church of Scotland, but without the entanglements that have led it astray. Each faith community must then decide its attitude to same-sex marriage on its own principles and according to its own rules. There must be no bullying of either side by the other; but nor should there be any claims for special treatment.

Posted by Simon Sarmiento on Wednesday, 4 January 2012 at 2:47pm GMT | TrackBack
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Categorised as: Church of England

Interesting thoughts, and I do think either disestablishment or some kind of "out clause" for churches to be able to say "no" to a given marriage will be important, such as other denominations in England already enjoy. (I take it an RC church need not marry divorcees.)

In the US churches are given "out clauses" from any number of civic regulations. One of the most significant is the Americans With Disabilities Act which requires public buildings to be accessible to those with various motility disabilities. Although churches are urged to do this (both as a matter of the Gospel and openness to its own members) it was recognized that many houses of worship are older buildings for which such adaptations might be difficult and costly. (I'm happy to say my own church, though on the older end of things in this young country, was able to make such adaptations).

This is a story that will be followed with interest and care. The old European answer of complete disentanglement of civil and sacred marriage may yet make its way in England. Euro, No; Napoleonic Marriage Code, Yes?

Posted by: Tobias Stanislas Haller on Wednesday, 4 January 2012 at 3:12pm GMT

The rhetorical question 'and who would ever want to be married by an unwilling vicar?' posed by Ian McLean assumes a naive, rather than obvious answer.

We could very well ask another question in a similar vein: 'and who would ever want to be guests of unwilling Cornish B&B hosts, Peter and Hazelmary Bull?'

Admittedly, a desire to overturn centuries of discrimination and injustice by fining a vicar or small-time hotelier is not the overriding concern of most couples. Nevertheless, some might become sufficiently aggrieved by the status quo as to take issue with a dissapproving cleric; of course, as elsewhere, only launching a high-profile Stonewall-funded landmark test case of discrimination when it becomes absolutely necessary.

Posted by: David Shepherd on Wednesday, 4 January 2012 at 8:52pm GMT

To pick up on Tobias'comment: within specifically the Episcopal Church, any cleric can refuse to celebrate a particular marriage for any reason, or for no reason. The concern I have heard expressed (and can't speak to, since I'm not C of E) that Church of England clergy do not have that discretion certainly begins to sound like a "public authority."

Posted by: Marshall Scott on Wednesday, 4 January 2012 at 9:53pm GMT

Jim Naughton at The Lead does not describe the reality of SSBs in the congenial manner you mention, M Scott. He speaks of GC moving forward on SSBs and then needing to consider an exemption--not for individual priestly conscience, as you intimate, but--for a Bishop whose Diocese tout court does not see fit to receive the new GC position. If so, the matter will not play out from priest to priest. It will play out at the Diocesan level. Do you disagree with him and if so, how can you show he is mistaken?

Posted by: c.r.seitz on Wednesday, 4 January 2012 at 11:30pm GMT

An equivalence of a vicar and a B&B, David? Not REMOTELY the same!

[Now, the equivalence between a *parish sanctuary* and a B&B could be seen as similar. And, I suppose---Ignorant Yank here---that could be seen as the issue? Whether a same-sex couple has the right to a marriage in a given CofE parish sanctuary (though not w/ a given vicar)?]

Posted by: JCF on Thursday, 5 January 2012 at 2:35am GMT

The Church of England's 'Establishment' status is a problem - not only for State-sanctioned Same-Sex Marriage, but also for the prospective Covenant Relationship, that might threaten the independence of the Church of England with interference from other Communion Partners. So maybe, if the Covenant wins reception in the Communion, the State itself may not be happy with the status quo Establishment arrangement with the Church of England, simply because the State may no longer have a say in the C.of E.'s governance.

Posted by: Father Ron Smith on Thursday, 5 January 2012 at 7:58am GMT

Come on, JCF. Surely, the questions establish an equivalence between the unwilling individuals who officiate or run the establishment, rather than the sanctuary or establishment itself.

Anyway, yes, it's a nit-picking point, so I'll stop. To JCF and everyone else on TA, Happy New Year!

Posted by: David Shepherd on Thursday, 5 January 2012 at 9:11am GMT

if I understood JCF correctly, the question is not whether a particular priest can refuse to marry anyone (they already can), but whether that also means that another, willing priest would be forbidden to use the church to perform a same sex wedding.

As it stands, no priest can make such a choice because General Synod would have to approve of same sex marriages in principle first.

I would have thought the law is pretty clear about that already, as the recent debate in the House of Lords confirmed. But you're right, no-one can stop any individual to try to take legal action.
There again - so what? Provided the law is watertight, what would anyone have to fear?

Posted by: Erika Baker on Thursday, 5 January 2012 at 9:31am GMT

David and others: as I have pointed out here before, the judge in the B&B case explicitly REJECTED the claim that the claimants or Stonewall set out to entrap Mr and Mrs Bull. I do wish people would read the judgement.

Posted by: Iain McLean on Thursday, 5 January 2012 at 9:43am GMT

Rev. Seitz--

Marshall is right the decison to solemnize or not, any marriage, is given to the individual priest. It is also true that solemnizing marriage is acknowledged as a possiblity for clergy all the dioceses. So, even if some dioceses go forward with SSBs, and others not, the precedent is already there for individual decision--not a sure thing, of course, but I don't see any groundswell for the mandate. But I read Marshall's point as directed differently: that a church that did not have a discretion clause even for marriage, was a church that already was being seen as a public authority. The American scene is quite different from the get-go, thanks to disestablishment.

Posted by: Christopher (P.) on Thursday, 5 January 2012 at 12:58pm GMT

The possibility of this reality:

"even if some dioceses go forward with SSBs, and others not"

is precisely the area of contestation. Will TEC actually permit a diocese to refuse to adopt a new practice? Many doubt this would be true, and certainly not long term.

Hence the idea of individual priestly conscience not finally being the real focal point. If a diocese does not permit it, individual conscience is irrelevant. How long will that state of affairs be tolerated?

I understand the 'individual conscience' idea quite well. I just think it is trumped by other polity considerations. Hence my reference to the view reflexively held by Naughton at The Lead.

Is he wrong?

Posted by: c.r.seitz on Thursday, 5 January 2012 at 3:11pm GMT

Two quite distinct situations are getting tangled in this thread:

- the British constitutional issue of church establishment and the possibility of civil SS marriage here

- the American church issue of applying an individual conscience clause to SS blessings if adopted by TEC

These really need to be discussed separately.

If CRS will give me a URL for the source of his concern about the latter, I will institute a new thread for that purpose. But I really would like the discussion here to focus on the British case.

Posted by: Simon Sarmiento on Thursday, 5 January 2012 at 3:41pm GMT

The source of my concern is a respondent's comment (Marshall Scott). As is usual on a blog, I responded to what was written. Just to clarify.

Posted by: c.r.seitz on Thursday, 5 January 2012 at 4:52pm GMT


Thanks for setting the record straight. It was cocky of me to think that my words couldn't be misconstrued to equate Stonewall-funding with entrapment.

I do question whether 'demand' accurately describes the Lord Bishop of Blackburn's mere effort to explain how the current legal conventions would influence how the established church adopts the regulations.

We are also aware that Article 9 of the European Convention on Human Rights only protects the freedom to manifest one's religion or belief. As with Arrowsmith vs. the United Kingdom, the term manifestation 'does not cover each act which is motivated or influenced by a religion or a belief'.

Okay, I accept the point about a converse restriction upon those willing to perform same-sex weddings, but is the law watertight without a conscience clause?

Posted by: David Shepherd on Thursday, 5 January 2012 at 5:04pm GMT

No CRS, your source is Naughton at The Lead, who you claim, expresses at that place, views that are different from those of Scott. Hence my question.

Posted by: Simon Sarmiento on Thursday, 5 January 2012 at 6:27pm GMT

Not sure what the problem is. But here is the thread.

In it, Naughton wonders whether bishops will be allowed any 'discretion' to stand aloof from a GC resolution or canon. He says nothing about the context being invoked here (by M Scott; individual conscience), and does not assume it. That is very helpful in showing what the next season will probably look like.

Naturally the context assumed by M Scott is not the same as the CofE.

Posted by: c.r.seitz on Thursday, 5 January 2012 at 6:40pm GMT

"Okay, I accept the point about a converse restriction upon those willing to perform same-sex weddings, but is the law watertight without a conscience clause?"

The House of Lords, including the Bishops who spoke during the recent debate, all seem to think so. I'm no legal expert, but if even Bishops seem to think they cannot be forced to marry or bless same sex couples, then I am minded to trust the process.

Posted by: Erika Baker on Thursday, 5 January 2012 at 8:02pm GMT

Efforts to compare CofE and TEC in this area are bound to run aground.
The CofE is an Established Church. TEC is not. The First Amendment of the United States Constitution expressly forbids Established Churches. In modern times, the clause "Congress shall make no law respecting an establishment of religion" has come to loosely mean that the US government shall not favor one religious denomination over another, or religion over non religion, but when the Amendment was proposed and adopted, an Established Church was precisely what the authors had in mind to emphatically reject.
Simultaneously, the First Amendment also gives TEC, and every other organized religious enterprise, the freedom to run their church as they see fit, and to everyone in the USA, the freedom to practice religion or no religion as his or her conscience dictates.
The English/American dynamics are totally different.
But I have do have one question:
If clergy in England, including CofE clergy, already have the ability to reject or accept a request to marry a particular couple, what's the concern? If a priest can already reject a request to marry particular heterosexual couples, why couldn't that same priest say "No" to a request to marry a gay or lesbian couple, if England adopts civil same-sex marriage?

Posted by: peterpi - eter Gross on Thursday, 5 January 2012 at 8:16pm GMT

I forwarded this earlier.

See 4th paragraph where Naughton speaks of a GC decision on SSBs and whether individual bishops might be given discretion for their diocesan practice.

Posted by: c.r.seitz on Thursday, 5 January 2012 at 10:56pm GMT

Christopher P. has understood the point I wished to make. We in America inherited that expectation that marriage *must* be performed by a minister, fulfilling both civil and religious functions in on event. While that continues as a cultural expectation (at least among those who claim some relation to a faith community), it is not a matter of law. While this may have changed in England (and, again, I can't speak as one who lives there), the (at least historic) legal requirement that marriages be performed by a minister of the Church of England has maintained that expectation even more strongly. We've struggled enough with it where there hasn't been requirement in law (ask any of us about the couples who marry in the church not out of the fear of the Lord, but out of the fear of the Grandmother!). I can only imagine how strong that expectation must be where there has been that requirement.

Posted by: Marshall Scott on Friday, 6 January 2012 at 2:32am GMT

"In it, Naughton wonders whether bishops will be allowed any 'discretion' to stand aloof from a GC resolution or canon"

But that's a completely different issue, isn't it?
We're discussing whether, following national legislation to permit same sex marriages, there will still be a legal opt-out for the whole of the CoE.

Whether the CoE then eventually accepts same sex marriages granting opt-outs to individual dioceses or priests, or whether individual dioceses will try to flout General Synod and perform same sex marriages is an internal issue for the church and of absolutely no consequence to the British Parliament.

Posted by: Erika Baker on Friday, 6 January 2012 at 10:03am GMT

I don't think there's any expectation here that marriages must be performed in a church.
I have no official statistics but the Daily Telegraph writes:

Since 1994, the number of civil weddings in "approved premises" has risen to more than 50,000 a year, while Church of England marriages have dropped by 40 per cent over 10 years to about 55,000.

Posted by: Erika Baker on Friday, 6 January 2012 at 10:34am GMT

"...Naughton wonders whether bishops will be allowed any 'discretion' to stand aloof from a GC resolution or canon..."

On at least one subject, they already are. No TEC bishop is required to ordain a woman if it violates his conscience. I see no reason to think a similar conscience exception would be made if same-sex marriage (or blessings of civil SS marriages) were to be permitted by a future resolution.

EDITOR COMMENT: Is there a "not" missing from the previous sentence?

Posted by: Pat O'Neill on Friday, 6 January 2012 at 11:13am GMT

A priest in England is not able to reject a request for heterosexual couples to marry.

They have a right to be married in their parish church, and if the priest is unwilling to perform the wedding, then the priest must provide another who is willing. This is the case even of divorced persons wanting remarriage. However if the parish priest is opposed to the marriage then they may well wish not to be married at that parish church, or they may be told that they could not be married on a Saturday etc.

Posted by: Simon R on Friday, 6 January 2012 at 12:54pm GMT

Thank you CRS for the link to the Naughton article which I had not previously noticed, let alone read (it has been Christmas and New Year holiday season....)

I will start a new thread and ask that any further discussion of the American situation is made there, and not on this thread which was originally about a very specifically British problem. Thanks.

Posted by: Simon Sarmiento on Friday, 6 January 2012 at 1:31pm GMT

Of course I never said the CofE and TEC were comparable, for the reasons pointed out. I was responding to a comment by M Scott that all would be well because of a conscience principle -- something TEC progressives themselves put in doubt when they speak of the diocesan reality. I think they are right to do so because, in TEC, that is where the neuralgic area is. Pat above speaks as though dioceses will be allowed their own discretion. That is the area where the tension will manifest itself in TEC's polity. This is completely different to the CofE and also to 'individual conscience' pleadings.

Posted by: c.r.seitz on Friday, 6 January 2012 at 2:19pm GMT

Simon R on Friday, 6 January 2012 at 12:54pm GMT,
Thank you for your post.
Obviously, disestablishment carries with it a broad range of issues and dynamics regarding the CofE's relationship to government, culture, the royalty, etc., but, to my somewhat-uninformed mind, it would be a way -- a drastic way, to be sure -- to ensure that the CofE would be as free to offer or not offer religious marriage rites to civilly-married couples, of any stripe, as any other organized religious establishment. It would also stop parliamentary meddling in other areas of its affairs particular to the CofE.

Posted by: peterpi - Peter Gross on Friday, 6 January 2012 at 5:55pm GMT

Simon R is wrong to say that a parish priest (in the CofE) must allow his/her church to be used for the marriage of a divorced person with a spouse still living even if he/she is opposed to such a marriage.

Section 8.2 of the Matrimonial Causes Act 1965 states,
“No clergyman of the Church of England or the Church in Wales shall be compelled
(a) to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living; or
(b) to permit the marriage of such a person to be solemnised in the church or chapel of which he is the minister.”

Posted by: Peter Owen on Friday, 6 January 2012 at 8:58pm GMT

Re the editor comment on my last post: Yes, there is a "not" missing. Mea culpa

Posted by: Pat O'Neill on Friday, 6 January 2012 at 9:40pm GMT
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