Wednesday, 12 December 2012
Equal Marriage: the position of the Church in Wales
Yesterday the Archbishop of Wales expressed surprise about the government’s action with respect to the Church in Wales.
See BBC report: Gay marriage ban ‘step too far’ says Archbishop of Wales.
And WalesOnline Gay marriages: Church in Wales faces ban on performing gay ceremonies.
But if you read the official submission from the Church in Wales to the consultation, you can easily see why the government took them at their word.
Posted by Simon Sarmiento on
Wednesday, 12 December 2012 at 7:29am GMT
The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages. The Church in Wales’ concerns about the legal implications are therefore the same as those of the Church of England. We have taken note of these, and would seek assurances that the Government would specifically include the Church in Wales in any provisions for the Church of England under the proposed legislation.
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Church in Wales
It was with great relief that I read the statement by the Archbishop of Wales, and indeed the Methodist Church. I would hope a similar statement comes from the new Archbishop of Canterbury Justin Welby.
This proposed law must be amended to allow the Anglican and Methodist churches to make any furure decision themselves, and leave the door open for inclusivity to be welcome in the Christian church.
The Archbishop of Wales wasn't the only one.
Maria Miller got a sharp question on this yesterday. A Welsh MP wanted to know whether she realized that the Church of Wales had been disestablished in the 1920s.
The C in W got what it said it wished for - as did what passes for the 'leadership' of the C of E.
Yes, the Church in Wales was disestablished in 1920.
But for reasons that are not clear, but possibly on the basis of retaining its pre-reformation rights, the Church in Wales retained all the rights, priveledges and obligations it had enjoyed hitherto.
So, Welsh parishioners enjoy the same absolute right to be married in the parish church (if they are not divorced) no matter what faith, nationality etc.
Church in Wales clergy alone in the country are enabled to oversee marriages and make a return by virtue of their ordination alone.
So in respect to marriage law our position is akin to what it was before 1920. The only difference is that when we need to amend marriage law as we did recently with regard to residency qualifications, we had to promote a Private Bill.
Good statement from the Archbishop of Wales, though I'm starting to see mixed messages. That special "lock" on CoE and W seems like a crushing impingement on Freedom, of Religion and certainly CoE and W's abilities to determine their own path in the future. It should be unacceptable regardless of one's view of gay marriage.
How I would love to hear more from CoE about the Good News shared with all, instead of the Good News reserved for their club for all time, enshrined in law.
Hurrah for Archbishop Barry
Sorry folks, but this is more complicated than it looks. (And I don't like saying that, because it makes me sound like the lawyer that I am.) But the CofE's little note (following post here) justifies the Church of England's position based upon the fact that any change in CofE marriage would require an act of synod and a measure, which is the same as primary legislation. (The note actually reminds me that the proposed bill may actually make some sense in this respect, although I wish it didn't.) But that justification does not apply to the Church in Wales, which was disestablished in 1920, so that its internal decisions are no longer subject to a parliamentary veto. Even if it got what it asked for, the legal concerns are not (and never were after 1920) the same as those for the CofE (thus the submission, quoted above, makes no sense, at least without a lot more detail). This post needs to be confirmed by Martin Reynolds, though, who has read about marriage law in the Church in Wales more recently than I have. That may weaken the distinction I'm making. But on a general level, the analogy doesn't hold, and it shouldn't consistently with the constitutional statute that disestablished the Welsh Church in 1920 and without (further) confusing the whole notion of what 'establishment' means (if that were possible).
And I've just done some reading, and it turns out that the Church in Wales, for obscure historical reasons stemming from Lord Hugh Cecil, a ditcher antidisestablishmentarian's, strategic objections to the bill disestablishing the church in 1912, the Church in Wales' marriage law is like that of the Church of England's: an artifact of establishment. The Marriage (Wales) Act 2010 modified it but retained government control over marriage in that church. So primary legislation is required there, and it is proper primary legislation *not* a measure that can only be debated once and voted up or down, so their position is potentially even worse than that of the Church of England. For details see Nicholas Roberts, The Historical Background to the Marriage (Wales) Act 2010, Ecclesiastical Law Review  Ecclesiastical Law Rev. 39.
Of course, all of this would be avoidable if the Conservatives (of all stripes) really believed in parliamentary sovereignty, because implied repeal would make all this go away. But of course a legal fiction like parliamentary sovereignty only applies when one's own ox is being gored.
Scot is on the ball.
But it is the oddest of relics, isn't it?
When I say above that the CinW retained all its rights etc.
I was referring to marriage, alone.
Yet, a few of us have been discussing just what does require legislation, and perhaps Scot can help.
We have changed our Canons before and the divorced may now marry, we have changed the words of the Prayer Book marriage service twice or more in my lifetime, and all without legislation.
So, if the law of the land is changed setting aside that marriage can only be between a man and a woman why would it then require another Bill to make that happen here? I think I grasp why changing the residence qualifications needed a change in the law but ......... what am I missing?
It seems to me that what is needed for the Church in Wales is a statutory provision that, notwithstanding anything else to the contrary, it shall be lawful for the clergy of the Church in Wales to decline to solemnize the marriage of persons whose proposed marriage is contrary to the canons of the Church in Wales, and for the same Church to require its clergy so to decline solemnization. I assume that should get them out from under the common-law obligation to solemnize any marriage, and would allow for the ongoing development of secular marriage law without creating an intolerable obligation on the Church in Wales. It would give full control over whose marriage the Church is prepared to solemnize to the Church, provided, of course, that it could not validly solemnize a marriage that would not be valid civilly. Such a move would no doubt be controversial as it would abrogate what is understood to be a human right to marry in the parish church. So no bets on whether it would be widely supported. But it would limit the need for case-by-case statutory exceptions.
One of the other vestiges of Establishment is that the Archbishop of Canterbury still has the power to grant special licenses to marry in Wales as in England.