Friday, 22 June 2012

Same-Sex Civil Marriage and the Established Religious Lobby

Iain McLean and Scot Peterson have written at Politics in Spires about Same-Sex Civil Marriage and the Established Religious Lobby: Providing the Government with Good Information?

On Tuesday 12 June, two days before the end of the consultation by the Government Equalities Office (GEO) on same-sex civil marriage, the Church of England submitted an unsigned response. The response contains a number of arguments, which we feel are deeply flawed or simply inaccurate:

  • Same-sex civil marriage violates the fundamental principle of marriage: complementarity, which arises from the difference between the sexes. If this argument does not depend upon the importance of procreation, and it cannot, then the argument is circular.
  • Legislation on civil marriage will impact religious marriage because the institution of marriage is one and the same for both. But one of the foremost Christian apologists in the Church of England has argued that they should be different, and the Church of England has fought successfully to maintain the distinction between the two.
  • The Church of England’s bishops have supported civil partnership policy in the UK. In fact, they have not.
  • European law may force churches to perform same-sex marriages if the government does so. In fact, the authority that the church relies on leads to exactly the opposite conclusion.
  • Nothing is gained by giving same-sex partners the option of a civil marriage when they already have civil partnership. This argument is wrong, because (a) important benefits obtain in marriage, which do not in civil partnerships; and (b) separate is not equal.

On Thursday 14 June, the consultation deadline, seven Oxford academics, including the authors, Professors Leslie Green (Philosophy of Law) and Diarmaid MacCulloch (History of the Church); the Rev Canon Dr Judith Maltby, Dr Adrian Kelly, and Will Jones, M.Phil., submitted a response to the church’s position, addressing each of these arguments in turn…

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Categorised as: Church of England | equality legislation
Comments

One only hopes that the British government panel collating all the responses to the proposed legislation for Same-Sex Marriage will pay more attention to this detailed response, than to the un-named 'official' response by the 'Church of England'

The arguments put forward by the official response are obviously full of holes, and hardly acceptable.

Posted by: Father Ron Smith on Saturday, 23 June 2012 at 2:13am BST

There was a time when England's greatest academics were churchmen.

Now, the Archbishops of Canterbury and York put out a paper on one of their core subjects which is, as the Church Times put it "tendentious and poorly argued". Leaving aside the conclusions of the church paper, it demonstrated an ignorance of history and law, and a childish level of argument, which are impressively addressed by this response from Oxford academics from a range of disciplines which would once have been well within the competence of the Bench of Bishops.

If the Church of England is to fulfil its mission and evangelise an increasingly sceptical and hostile nation, (1) it must be a force for good; and (2) it must be seen to be a force for good; and (3) it must be credible.

Its hysterical and incoherent opposition to equal marriage has been a fail on all three counts.

Posted by: badman on Saturday, 23 June 2012 at 8:47am BST

‘that differential treatment of the applicants’ rights fell within the ‘margin of appreciation’ afforded to member states.’

This is crucial factor in assessing the Church of England’s response.

The reason for the European Court respecting the margin of appreciation is expressed clearly by Judge Malinverni in the same case: ‘Article 12 is inapplicable to persons of the same sex. Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union deliberately omitted any reference to men and women, since it provides that “the right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.’

So, if the national law changes to accommodate same-sex marriage, the Court is under no obligation to extend any margin of appreciation anymore. The Court can hold that differential treatment constitutes a violation of Article 9 rights.

As I’ve stated elsewhere: While the marriage rite is a valid manifestation of belief, the margin of appreciation granted by the European Court would be removed, if gay marriage became legal in the UK. Article 9 does not protect against interferences (in the right to manifest one’s religion) that are deemed ‘necessary to a democratic society’.

Posted by: David Shepherd on Saturday, 23 June 2012 at 10:53am BST

Complementarity is in the relation and mission of the couple, rather than their individual capacities considered in isolation. Complementarity doesn't restrict how they function as individuals while married in other areas of their lives.

The writers of this response have completely missed this.

The focus of the complementarity is on how they might exercise the full range of functions with respect to each other, in this case, as a married couple. The same is the true for membership of the Body of Christ ( 1 Cor. 12)

As one learned priest describe the binary capacity required by the UK law of marriage: 'this interestingly enough is a quality not of each member of the couple but of the couple as couple'.

I couldn't agree more!

Posted by: David Shepherd on Saturday, 23 June 2012 at 11:10am BST

Thank you, Oxford!! I hope bishops are held to account for their deadful submission by their dioceses - here is just the information people need in order to press them hard over the church's attitude to what is coming.

What, for example, is going to be the attitude of dioceses and churches to members who choose to avail themselves of the opportunity and the legal right to have a civil marriage? And of clergy ditto? Will the clergy be disciplined, and they and the laity excommunicated for acknowledging and embracing a vision of marriage that the church leadership says will mean that every other marriage in the church is "hollowed out" and somehow diminished? And we have been told that "gay marriage" is bad for children - so what will happen to them if there are gay married people in church? In fact, the whole of civilisation will have to be rethought, won't it?

I think we should be told.

Posted by: JeremyP on Saturday, 23 June 2012 at 11:13am BST

The analysis of the Oxford dons is a devastating repudiation of an incredibly shoddy piece of work. The only thing I would add is a reminder, on the legal side, that four years ago, the California Supreme Court found that "equal" rights but separate names for opposite sex couples ("marriages") and same-sex couples ("domestic partnership," "civil partnership," or "civil union") creates inherent inequality:

"[A]ffording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.

"First, because of the long and celebrated history of the term 'marriage' and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples.... [E]ven when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.

"Second, particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term 'marriage' is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship….

"Third, it also is significant that although the meaning of the term 'marriage' is well understood by the public generally, the status of domestic partnership is not. While it is true that this circumstance may change over time, it is difficult to deny that the unfamiliarity of the term 'domestic partnership' is likely, for a considerable period of time, to pose significant difficulties and complications for same-sex couples, and perhaps most poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage."

Posted by: dr.primrose on Saturday, 23 June 2012 at 6:14pm BST

Excellent and just to say that as fellow American I am quite proud to see Judith Maltby's name and to imagine that she facilitated references to USA civil rights decisions. As someone else has already noted, the C-of-E response to the government proposal appeared on the 45th anniversary of Loving vs Virginia - a bit of heavenly irony.

Posted by: Sara MacVane on Saturday, 23 June 2012 at 7:00pm BST

Many thanks to the "wise seven"

Posted by: J. Michael Povey on Sunday, 24 June 2012 at 12:21am BST

"Complementarity is in the relation and mission of the couple, rather than their individual capacities considered in isolation."

But shall complementarity be equated to "Tab A in Slot B"? Cell differentiation into X or Y?

No one has to argue to me that "Diversity is Beautiful" (there's a troll around the Episcopal blogosphere who's always taunting "Celebrate Your Diversity": well, I do!).

Reducing complementary diversity into a fetishization of gonads, gametes or reproductive organs is rather trading God's Gifts (ALL of them) for a golden calf. No thanks.

[And FYI, DavidS, there's no "mission of the couple", that a same-sex couple can't do just as well. Simple observation.]

Posted by: JCF on Sunday, 24 June 2012 at 7:01am BST

'And FYI, DavidS, there's no "mission of the couple", that a same-sex couple can't do just as well. Simple observation.'

Symbolic diversity is more like a simplistic observation, JCF. Two partners of any sexual orientation and each fertile, right? So try building kinship, directly from any such relationship, a real family, a network of blood ties (rather than a so-called 'de facto' family) directly from homosexual partnering.

A normative part of a couple's mission is to raise their own offspring as part of raising the next generation. Not every couple, mind you, but two partners, each fertile, should be able to produce a descent group, i.e. kin, to whom both are genetically related. That's kinship.

Point me to just one couple of homosexuals, each fertile, who can, via their sexually exclusive relationship, fulfil this mission of building and nurturing a descent group with whom they both share direct blood ties. It should be easy.

Posted by: David Shepherd on Sunday, 24 June 2012 at 10:16am BST

Specifically to DavidS, I disagree on the margin of appreciation which I don't think you've understood. The margin of appreciation would surely remain but, when one thinks that ceremonies carried out by religions receive a higher level of protection than other more peripheral 'manifestations of religion' and that everywhere in the world not just Europe there is a freedom for religions to determine who to marry and who not to, within certain limits.

David's argument is, on the face of it curious, ie that a state that allows same sex marriage by the state as well as as those religions that opt to do so would be a worse human rights offender than countries who make no provision for same sex couples or in many cases have outlawed marriage in their constitution. That would make no sense at all.

Any way, so far from from the margin of appreciation being removed I think the case is the opposite - it would be unlawful for a government to make a religion do marriages against their wishes. On this point there would not be margin of appreciation. The upshot is the CofE is leading a massive in scaremongering which reflects very poorly on their level of either honesty or understanding. Or both.

Posted by: Craig Nelson on Sunday, 24 June 2012 at 3:37pm BST

Pertinent questions from JeremyP, but sadly I suspect no-one has thought ahead at all.
The whole thing makes me think of the desperate rearguard fight against permitting a man to marry his deceased wife's sister, which took from 1841 to 1907, based in specious exegesis of another couple of verses from Leviticus, which was flatly contradicted in verses from Deuteronomy anyway. All of which was backed up by the same flesh-creeping hypothesising about the moral collapse of the universe as we are hearing today. The bishops made themselves a laughing-stock for 66 years. Please God they won't be so collectively stupid again.

Posted by: cryptogram on Sunday, 24 June 2012 at 6:16pm BST

David S:

Why this incredible obsession with blood kinship? Where in the theology of Christian marriage do you find this? Where in common law do you find it? I don't know about the law in the UK, but in most states in the US, adopted children are just as legitimate, just as much a part of the family, as "natural" children. Adopted children inherit in cases of intestate death, along with their natural siblings (if any), for example. And in most states, sexual relations between adopted siblings or between an adopted child and his/her adoptive parent are considered incest.

Posted by: Pat O'Neill on Sunday, 24 June 2012 at 7:01pm BST

Craig:

Let's agree that the McLean and Peterson response itself cites Adam Wagner's Guardian piece that gave the legal challenge a reasonable chance of success under article 9 of the Charter of Fundamental Rights of the European Union: 'The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.'

Wagner said:

'It may be that once a state decides to implement gay marriage, the court will be less cautious in ruling on how exactly the rules are implemented. But, a claimant would still face very significant hurdles. It is clear from Schalk is that the ECtHR is still a long way from seeking to dictate how states should or should not legislate for gay marriage.'

While he suggested that the CofE response overestimated the likelihood, even a reasonable chance of success would take a withdrawal of the margin of appreciation previously accorded. Your position suggests the opposite.

In respect of outcome, I stated on TA on 20th June: 'I don't think the State would force either a priest or religion to act against conscience. It would be more plausible for a well-funded pressure group to sponsor a case that would test the exemption of CofE priests from solemnising marriages of gay partners as an infringement of Article 12 rights all the way to Strasbourg. The easiest remedy would be to remove the historic duty of the priest to marry all eligible partners who request a church wedding and reside in the parish.' http://www.thinkinganglicans.org.uk/cgi-bin/mt-comments.cgi?entry_id=5542

In contrast, Feria, a regular contributor to TA and supporter of gay marriage wrote later in that thread:
'I'm thinking a little further ahead, to the possibility that a backbench amendment changes the Bill, so that it explicitly introduces a same-sex marriage liturgy for the Church of England. Even that would not mean that 'the Church of England would have no choice'. Instead, it would mean that the Church of England, through its governing body Parliament, had _made_ a choice to introduce a same-sex marriage liturgy.'

Whether he's right or wrong, if the proposals go ahead, do you think that liberal groups, like ILGA, would agree now to desist from ever intervening as amicus curiae to the ECHR on behalf of any petitioner, denied a CofE marriage by their parish priest? I trow not.

Posted by: David Shepherd on Sunday, 24 June 2012 at 10:12pm BST

David:

you seem worried about a case that couldn't be brought, let alone have amicae curiae written. I can't speak for ilga but cases can only be brought if they have some substance. A case cannot be brought under the CFR in any case (art 9 in any case reserves the matter to state legislation - as also does ECtHR Schalk and Kopf case; and the CFR is declaratory and not justiciable).

You will recall of course that Schalk and Kopf is exactly about treating same and opposite sex couples differently and found in favour of Austria that s state could legislate differently and in any case the art 9 ECHR protections remain in place.

So the chance of taking a case under CFR is zero and you need a case to have amicae curiae.

Posted by: Craig Nelson on Monday, 25 June 2012 at 1:06am BST

I want to echo Pat's question, DavidS.

Many years ago, as I was coming to an adult faith profession in the Episcopal Church I had been raised in, a priest left a last impression. In Christ, we were (he said) God's children by adoption. "And in Roman law, a natural-born child could be disowned, but an *adopted* child, NEVER!"

Through the years, I've found that idea very comforting. :-)

Posted by: JCF on Monday, 25 June 2012 at 6:29am BST

Craig:

If Wagner, who stands in support of gay marrige, is wrong about a reasonable chance of success, McLean and Peterson are wrong to cite it in favour of their argument: 'One prominent legal commentator has argued that the case against the church, to force it to perform same-sex religious marriage, is ‘reasonable’'

I'm just demonstrating that what you claim is conclusively impossible is given by gay marriage proponents a reasonable chance of success. Argue with those of your own side, including Wagner, McLean and Peterson, as to why they do so. Highlight their erroneous understanding of law. Or is that just not loyal?

Posted by: David Shepherd on Monday, 25 June 2012 at 6:54am BST

I suggest that a consensus of the faithful is evolving. It may well be, eventually, in favour of same sex marriage. Until a consensus has evolved, however, I think all those participating in discussion should treat both the pro and con arguments seriously, and politely.

The same applies to what I would call "the consensus of the nation". It is alarming that the Government should decide to introduce same sex marriage before there has been a long period of discussion and reflection - they have treated the matter as if it were a minor legislative change.

Posted by: John Ross Martyn on Monday, 25 June 2012 at 1:28pm BST

"The same applies to what I would call "the consensus of the nation". It is alarming that the Government should decide to introduce same sex marriage before there has been a long period of discussion and reflection - they have treated the matter as if it were a minor legislative change." John Ross Martyn.

Racial and gender equality legislation was introduced in the UK in 1975 at a time when women were still referred to as 'dolly birds', were asked in job interviews when they would be leaving to have a baby and were paid lower wages than men for work of equal value. Oh, and black people could be referred to in popular TV comedies as n----rs.

Sometimes it is the passing of legislation that promotes change in 'the consensus of the nation' and not the other way round.

Posted by: Laurence C. on Monday, 25 June 2012 at 3:54pm BST

Wagner's article is not well written. If I read it aright it says that the current government proposals could be vulnerable to a challenge on the grounds of preventing (in a blanket ban) religious groups from performing such marriages where they wish to do so. Were such a challenge to be made I think the chances are indeed reasonable though not in any way certain due to the Schalk v Austria case which gives a wide degree of discretion to member states.

There is though no chance of a case taken under the CFR (whatever anyone says) and the concept of a religion being oblliged to provide same sex marriages against their wishes is somewhat fanciful given the protections under art 9 of the ECHR.

Posted by: Craig Nelson on Monday, 25 June 2012 at 4:07pm BST

Craig:

Concerning your view that Article 9 protections are iron-clad exemptions, the existing case law supports considerations that are a lot more involved than you claim.

http://www.coe.int/t/dghl/cooperation/capacitybuilding/Source/documentation/hb09_rightfreedom_en.pdf

Posted by: David Shepherd on Monday, 25 June 2012 at 7:18pm BST

"It may well be, eventually, in favour of same sex marriage. Until a consensus has evolved, however, I think all those participating in discussion should treat both the pro and con arguments seriously, and politely."

Re "all those participating in discussion": you know the saying about Ham&Eggs, JRM?

"The chicken is involved, but the pig is committed!"

And so with the "discussion" about same-sex marriage. While straight people may be involved, gay people are (or WANT to be!) committed. It is neither right, nor realistic, to expect the latter to be "polite" about those who would hold them to (at best) second-class status.

Speaking personally, I am NOT content to wait for a "consensus" about *my life*, thankyouverymuch.

Posted by: JCF on Monday, 25 June 2012 at 9:05pm BST

Niceness is the enemy of fairness.

I second JCF's comment about ham and eggs.

Posted by: Counterlight on Tuesday, 26 June 2012 at 1:16pm BST

The latest case from the ECHR is Schalk v Austria which sort of seals the matter really. One can try to complicate matters but Schalk v Austria is really very clear.

The Church of England is engaged in some very dubious old fashioned scare mongering that does not reflect the known facts.

Posted by: Craig Nelson on Tuesday, 26 June 2012 at 4:33pm BST

Schalk vs. Austria is about two civil partners petitioning the ECHR to be granted access to marriage, whereas the CofE response deals with the requirement to legislate equally, if the right to marry is extended to include same-sex couples.

All Schalk vs. Austria established was that it is currently left to each member state to decide whether to legislate for same-sex marriage. If they do, they must implement it in a non-discriminatory way (Article 14).

For example, when Reformed churches complained of exclusion from civil recognition of their religious marriages, Croatia claimed that there was no obligation under the European Convention on Human Rights to recognise religious marriages in this way (Savez Crkava “Riječ Života” and others v. Croatia).

The Court agreed there was no obligation under Article 9 of the Convention, but held that once civil recognition of religious marriage was granted, Croatia could not implement a right that falls under one article (Article 9) in a mannner that discriminates (thereby contravening Article 14). You might well say that Croatia would have been better off not allowing any religious marriages to be recognised at all.

So, if a member state decides to extend the right to marry beyond what is obliged, it cannot then implement legislation for that right in a manner that is perceived to be discriminatory.

If it does prohibit gays from having a parish wedding, the State must demonstrate that there is an objective and justifiable reason for preventing parish priests (who have a statutory duty to marry any eligible parish residents who request a wedding) from solemnising the marriage of two people who fulfil the revised criteria for eligibility to marry, but 'just happen to be gay'.

For those who think it's the same as prohibiting the divorced from re-marrying in church, 'being divorced' is not a protected characteristic.

To claim that the proposals are legally unsafe is not scaremongering. However, the 'solution' would most probably be to divest priests of their historic parish marriage registration responsibility, handing that aspect over to civil registrars.

Posted by: David Shepherd on Wednesday, 27 June 2012 at 1:19am BST

"If it does prohibit gays from having a parish wedding, the State must demonstrate that there is an objective and justifiable reason for preventing parish priests (who have a statutory duty to marry any eligible parish residents who request a wedding) from solemnising the marriage of two people who fulfil the revised criteria for eligibility to marry, but 'just happen to be gay'."

This, of course, is a consequence of having an established church. Disestablish the CoE and the whole problem goes away, as it would not be the government prohibiting same-sex church weddings, but each individual church deciding on its own.

Posted by: Pat O'Neill on Wednesday, 27 June 2012 at 11:23am BST

So, repeal the Coronation Oath Act and the Act of Settlement 1700, then terminate the Accession Declaration, Royal Assent to the Church of England Canons and the Crown Nominations Commission and the Ecclesiastical Commission. Excise Article 37 from the 39 Articles,

Oh, and while we're at it, remove the Queen as the Supreme Governor of the CofE with a stroke of the legislative pen.

A very unlikely and unpopular manifesto promise.

Posted by: David Shepherd on Wednesday, 27 June 2012 at 5:48pm BST

David Shepherd, your comments here are sometimes reminders of the priority of the Law over Gospel. Many of us in the ministry of the Church have been striving most of our ministry with trying to encourage the reverse situation - in places where Law is so obviously counteractive to the Gospel.

And as for waiting for consensus on issues of combating homophobia and misogyny in the Church;
again it is a case of justice delayed being justice denied - antithetical to the Gospel.

Posted by: Father Ron Smith on Thursday, 28 June 2012 at 12:45am BST

Ron,

Given that we don't live in a theocracy, the law of the land (which we discuss here) differs considerably from the Law of God.

The Gospel does not revise or contradict the Law of God. It does empower us to escape its ultimate penalty (justification) and to identify and apply those aspects of the Law that we can internalise (sanctification): 'I will put my laws in their minds and write them on their hearts. I will be their God, and they will be my people.' (Heb. 8:10)

As you're aware, that life-long process of sanctification involves faith in Christ. That faith not only prioritises substance over cultural externalisms, it also embraces the very principles upon which God has ordered His creation for well-being and abundance. The gospel is a perfect antidote for the defiant self-rule in mankind's fallen nature.

No doubt, yours is a popular 'gospel' among those who won't abandon defiance of God's law in order to be recovered from the path of ultimate ruin.

'There's a way that seems right unto a man, the ends thereof are the ways of death' (Prov, 14:25; Prov. 16:12)

Posted by: David Shepherd on Friday, 29 June 2012 at 12:22pm BST
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