Wednesday, 12 December 2012

Equal Marriage and the Church of England

The Church of England has issued an explanatory note:

The full text is reproduced in full below the fold. Now moved to here and the title changed from “Equal Marriage” to “Same-sex marriage”.

Apologies for the broken link earlier. One would not have expected the CofE website to move such an important statement so soon after its publication without inserting a forward to the new location.

And the page has been moved yet again. 17 December.

The following explanatory note may be helpful in the context of yesterday’s Government statement and subsequent press coverage.

In her statement to the House of Commons on 11th December on the Government’s proposals for Equal Marriage, the Secretary of State said:

“because the Church of England and Wales have explicitly stated that they do not wish to conduct same-sex marriages the legislation will explicitly state that it would be illegal for the Churches of England and Wales to marry same-sex couples. Mr Speaker, this provision recognises and protects the unique and Established nature of these churches. The church’s canon law will also continue to ban the marriage of same-sex couples. Therefore, even if these institutions wanted to conduct same sex marriage, it would require a change to primary legislation at a later date and a change to canon law. Additional protection that cannot be breached.”

Press and political commentary on this has given rise to the impression that extra safeguards have been put in place for the Church of England, which give legal protection above and beyond that for other denominations and faiths. Some have said that this amounts to Government deciding to give preferential treatment to the Church of England on the question of legal protection for religious organisations not wishing to perform same-sex marriages. Others have questioned why the Government should explicitly write in to primary legislation that it would be “illegal” for the Church of England to perform same sex marriages when it will not be so for other denominations and faiths, taking this to mean that it places additional legislative barriers in the way of the Church of England in the unlikely event that it should wish to change its current position.

Such questions are understandable, but are based on a misunderstanding of the Church of England’s established status and its relationship with Parliament on matters relating to Canon Law.

This is not a question of the Government and Parliament imposing a prohibition or “ban” on what the Church of England can do. It is instead the Government responding to the Church’s wish to see the status quo for the Church of England preserved and accepting, as for other churches and faiths (though the legal framework is different for them), that it is not for the Government and Parliament to determine matters of doctrine.

As explained in the Church of England’s submission to the Government’s consultation in June 2012 (here:, the Canons of the Church of England define marriage, in accordance with Christ’s teaching and the doctrine of the Church, as being between a man and a woman. Because the Canon Law of the Church of England is also part of the public law of the land and cannot be in conflict with statute law, it is important that any legislation for same-sex marriage makes it clear that it does not apply to marriage according to the rites of the Church of England. The legislative drafting of what is needed for the Church of England is necessarily unique because of that; and because Church of England clergy normally have a legal duty to marry people by virtue of their office. The Government, in accepting that the legal effect of the Canons of the Church of England need to be preserved (in line with its assertions about protection of religious liberty), have committed to drafting legislation on same sex marriage accordingly.

The effect of what the Government has proposed is to leave decisions about the doctrine and practice of the Church of England with the Church of England. Any change to the Church of England’s doctrine and practice of marriage would require legislation by the Church’s General Synod. In addition to an Amending Canon that redefined the nature of marriage such a legislative package would also involve the General Synod passing a Measure (the General Synod’s equivalent of an Act of Parliament) that altered both the statute law concerning marriage according to the rites Church of England and the marriage service in the Book of Common Prayer.

All Synod Measures require parliamentary consent. The usual process of parliamentary scrutiny for legislation submitted by the Church is that it goes first to the Ecclesiastical Committee and then has a single debate in each House before the Measure goes for Royal Assent. As the General Synod’s devolved legislative powers includes the ability to amend Westminster legislation it would not require separate, additional legislation on the part of Parliament to enact any change to the Church’s practice on marriage. Talk of additional ‘barriers to opt-in’ for the Church of England following the Secretary of State’s announcement is therefore misplaced.

For Parliament to give the Church of England an opt-in to conduct same sex marriages that it hasn’t sought would be unnecessary, of doubtful constitutional propriety and introduce wholly avoidable confusion.

In addition, as the Bishop of Leicester said in the House of Lords on 11th December in response to the Government statement “our concern here is not primarily for religious conscience or the protection of the Church of England’s position, but rather a more fundamental concern for stable communities”. The arguments set out in the Church of England’s submission in June to the Government’s consultation (here: spell out those concerns in detail.

Posted by Simon Sarmiento on Wednesday, 12 December 2012 at 1:35pm GMT | TrackBack
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Categorised as: Church of England | equality legislation

"the Church's wish to see the status quo for the Church of England preserved"

Ever thus wasn't it?

Posted by: Alastair Newman on Wednesday, 12 December 2012 at 4:20pm GMT

As I thought, but it was a wonderful ruse from the Minister to hang these two out to dry.

Whatever happens now the image of a deeply homophobic Church of England and Church in Wales is set in people's minds.

Posted by: Martin Reynolds on Wednesday, 12 December 2012 at 4:50pm GMT

"As the General Synod’s devolved legislative powers includes the ability to amend Westminster legislation it would not require separate, additional legislation on the part of Parliament to enact any change to the Church’s practice on marriage."

Quite correct. If the General Synod were in future to adopt a Measure to allow it to solemnize marriages between people of the same sex, the Measure could include a provision to amend the law which is currently being proposed. The Church in Wales, however, has no such option and so would need to go to Westminster to ask for an amendment to the law were it to wish to change its canons.

That part of the proposal needs to be rethought. The two churches in question don't need any other protection than that offered to other religious bodies, in my view. The Established position of the Church of England is a red herring here.

If the decision whether to opt in to solemnization of same-sex marriages rests with the religious body, and if the protection for religious bodies that choose not to opt in is sufficient for, say, the Roman Catholic or Methodist churches (or for mosques and synagogues for that matter) then the protection ought to be sufficient for the Church of England and the Church in Wales.

Posted by: Alan T Perry on Wednesday, 12 December 2012 at 7:44pm GMT

I could only agree with a law preventing the Church of England from marrying even if it wanted to if it was clear that the Church a)was happy with this b)wanted it and c)felt it fulfilled some legitimate aim.

Still autonomy has to reside with the Church. There should be a procedure to allow such a provision of legislation to be repealed at the request from the Church to do so. This should be by order laid before Parliament which comes into force unless voted against by either chamber.

Why? Because whilst Parliament has a role in governing the Church of Engand the Church itself must govern its own affairs, ultimately make its own decisions.

The Church of England is established and Parliament has a role. Wales on the other hand I can see no other justification apart from their unwise submission asking for whatever England was going to get...

Posted by: Craig Nelson on Wednesday, 12 December 2012 at 11:08pm GMT

People outside the Church may find it it shocking that the CofE should succeed in criminalizing gay church weddings, but knowing something about the global Anglican context may help to explain how this situation should arise. It's worth bearing in mind that about the same time as the CofE released its response to the consultation earlier in the year, the Ugandan Church was lobbying its own government to oppose gay marriage, on quite similar grounds - the perceived threat to the institution of marriage and to society as a whole.

If we look to the EU countries where gay marriage already exists no Church to my knowledge has been forced to conduct a wedding ceremony against its will as a result of a legal case. So this argument was always a bit of a red herring to my mind. It seems more likely that this was part of a wider propoganda campaign.

Posted by: Andrew on Thursday, 13 December 2012 at 12:13am GMT

Well, it certainly cements the view of a homophobic CoE leadership that is completely out-of-touch with a large portion of their own members on the issue. It's about "stable communities?" Really? Hmm. I think it's just about the stability of the status quo of oppression.

And after this deeply dishonest language, what does CoE have to say about the Ugandan law invoking the death penalty for gays? Why would anyone listen to the CoE on the subject?

Here's what we've learned in the US about the grievous sins of racism, slavery, oppression of Native Americans, women, and LGBT: that any time a less powerful group is less equal under the law (including church law), they are vulnerable to oppression. Be it from the state or hate crimes such as the murder of Matthew Shepherd. Anytime the message is that a particular group isn't created in the image of God, terrible things happen. Including things like high suicide rates amongst LGBT teens. Perhaps in the UK, teens are mercifully tuned out to the rhetoric of the CoE. I pray that that's true.

Posted by: Cynthia on Thursday, 13 December 2012 at 6:23am GMT

Does anybody know whether the 'ban' was a Government initiative or specifically requested by the House of Bishops when they made representations to the Government. The explanatory notes do not explain this!

Posted by: commentator on Thursday, 13 December 2012 at 12:45pm GMT

Does anyone else find the suggestion that marriage equality is a threat to 'stable communities' extremely offensive?

Posted by: Gerry Lynch on Thursday, 13 December 2012 at 10:48pm GMT

not only extremely offensive but also extremely silly, considering that civil partnerships have not caused any apparent instability. My children haven't even taken to drugs in despair.

Posted by: Erika Baker on Friday, 14 December 2012 at 8:05am GMT

one could also point to an very impressive account in the Guardian or Observer at the weekend about the couple who were fostering children with serious physical and mental disabilities. Are they not contributing enormously to 'stable communities'?

Posted by: Richard Ashby on Friday, 14 December 2012 at 2:58pm GMT

I think we should avoid using phrases like "criminalizing solemnization of same-sex marriages" in this discourse. Not everything that is unlawful is criminal. The suggested ban would simply render any marriage solemnized contrary to the ban a nullity. (Whether that's a good thing is of course subject to debate.) Whether there would in addition be any disciplining of the officiant would be a matter for the Church discipline process, it seems to me. But I don't see how any of this would make the act "criminal."

Posted by: Alan T Perry on Friday, 14 December 2012 at 7:00pm GMT

The use of the word 'illegal' in the 4th lock has led many people to infer that a criminal act would be committed by conducting such a ceremony - including public figures such as the Archbishop of Wales and Simon Callow - even though the meaning may be in a narrow legal sense. The Government's statement seems to be quite precisely worded - the 2nd lock has 'unlawful', which doesn't have quite the same connotation.

Posted by: Andrew on Sunday, 16 December 2012 at 6:24pm GMT
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