Friday, 14 December 2012

same-sex marriage: the quadruple locks

The Church Times reports this morning: Same-sex-marriage Bill will lock C of E’s right to abstain by Ed Thornton

THE protection for the Church of England to be contained within the Government’s same-sex-marriage legislation was a surprise to church representatives, it emerged this week.

On Tuesday, the Minister for Women and Equalities, Maria Miller, announced that the Bill would include a “quadruple lock” of measures that would “protect religious freedom”. These would specify that it would be illegal for any Church of England minister to conduct a same-sex marriage.

But at a meeting with Parliamentarians on Thursday, the Bishop of Leicester, the Rt Revd Tim Stevens, said that this level of protection had not been mentioned in meetings with the Government. He regretted that no prior consul[t]ation had been sought…

And there is this sidebar

The legal position

IF, once the same-sex marriage legislation is passed, a parish priest decides to break the law and marry a same-sex couple, it will be to no avail: the marriage will not be valid.

This is because the legislation will not alter the Church of England’s canons, one of which - Canon B30, paragraph 1 - states that marriage is “of one man with one woman”.

The Government’s legislation does not, therefore, make it illegal for C of E ministers to marry same-sex couples, as some reports have suggested: it merely reinforces what is already the case in canon law.

Since canon law is also part of public law, the Government has had to make it specific that same-sex marriage legislation does not apply to Church of England marriage rites.

The Government is not attempting to alter canon law for two reasons: first, it is responding to requests from Church House officials that it permit the Church to maintain its existing position on marriage; second, it is preserving a long-standing tradition that Parliament does not legislate for the Church of England in matters of doctrine and practice.

It would be up to the General Synod, therefore, to pass legislation changing the C of E’s doctrine and practice of marriage. A legislative package would have to include an Amending Canon redefining the nature of marriage, and the passing of a Measure (the General Synod’s equivalent of an Act of Parliament) which altered both statute law concerning C of E marriage rites, and the marriage service in the Book of Common Prayer.

If passed by the Synod, the Measure would require parliamentary and, ultimately, royal assent.

This post from Ministry of Truth Making sense of Cameron’s ‘Quadruple Lock’ on Equal Marriage gives a great deal of detail.

…Okay, so why has the government now put religious marriage on the table when, previously, it was only offering to support same-sex civil marriages?

The answer to this lies in the legal advice that the government will have received prior to the publication of its response to the consultation on equal marriage in which they will have been told that by affording legal recognition to civil same sex marriages they would be paving the way for a legal challenge under article 9 of European Convention on Human Rights, which provides for freedom of thought conscience and religion.

To be absolutely clear on this, as this is an issue that has been widely misrepresented by opponents of equal marriage, the issue here is not that affording legal recognition to civil same-sex marriage would allow gay couples to use current equality legislation or the European Court of Human Rights to compel the Church of England, Roman Catholic Church, or any other religious group or denomination to set aside their theological/doctrinal objections to same-sex marriage. Even without the proposed ‘quadruple lock’ the likelihood of either the High Court of England and Wales or the European Court of Human Rights forcing any religious organisation to carry out same-sex marriages against its wishes is somewhere on a par with the chance of my being elected the next Pope. The High Court does not, as a matter of principle and long-standing convention, issue rulings on matter of theology while the European Court’s preferred approach to religious cases is perhaps best characterised as ducking the issue by batting the matter back to national governments/courts under their margin of appreciation.

What was highly likely, had the government not made some provision for religious same-sex marriages, was a legal challenge to the government, and not to any individual church, under article 9 of ECHR from one or more of those denominations that has already indicated that it does wish to be able to conduct religious marriage ceremonies for same-sex couples, a list which currently includes the Unitarians, Quakers and Liberal Jews. From the point at which secular law recognises same-sex civil marriages their ceases to be any viable legal argument for restricting the ability of religious denominations to recognise and conduct same sex marriages, if that is consistent with their theological position, solely on the basis that other religious groups are, themselves, opposed to that same practice….

And, regarding the fourth lock in particular:

…Unlike other churches and religious organisations, the Church of England, as the established church, is legally obliged to conduct marriage ceremonies for anyone who asks subject only to the rules of canon law and secular provision of the Marriage Act 1949 (and subsequent amendments) irrespective of the actual religious beliefs of the parties who wish to marry. As long as both parties are content to be married under the rites of the Church of England, legally able to marry and are willing to comply with the Churches administrative requirements, e.g. the posting of banns, etc. then, save for an explicit legal exemption relating to divorcees whose former spouse in still alive, the Church has a legal duty to perform the ceremony.

This being the case, the government cannot merely leave the option open without creating a constitutional problem by giving rise to a potential conflict between statute and canon law, one that can only be resolved in one of two ways given that the Church remains, at least for the time being, opposed to carrying out same-sex marriages; the government must either legislate for the Church of England in line with current canon law, in which case statute law must specify that it remains unlawful for ministers of the Church of England to marry same-sex couples, or it must remove from law the Church’s legal duty to perform marriages for any heterosexual couple who asks to be married under the rites of the Church.

As this second option would entail the Church taking a very clear step on the road to disestablishment, the government have chosen to take the first option and maintain a consistent position between statute and canon law by retaining a ban of same-sex marriages within the Church of England in statute law…

John Bingham at the Telegraph wrote: Gay marriage: Church of England signals it could ‘live with’ Government plans

…Church officials have acknowledged that they could potentially “live with” the proposals drawn up by Government lawyers to prevent churches facing human rights challenges to force them to conduct weddings for homosexual couples.
It comes in marked contrast to claims earlier this year that same-sex marriage could pose the biggest threat to its position as the established church since the reformation.

The incoming Archbishop of Canterbury, Justin Welby, has made clear that he is opposed to same-sex marriage.

Meanwhile the House of Lords heard on[e] claim that several bishops secretly support the principle of gay marriage but are afraid to speak out because it would contradict the official policy of the Church…

Posted by Simon Sarmiento on Friday, 14 December 2012 at 7:50am GMT | TrackBack
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Categorised as: Church in Wales | Church of England | equality legislation
Comments

Firstly the thoroughness of TA in garnering and reporting interesting links makes this site indispensible in understanding the issues (not to mention those who post as well).

As to the so called quadruple lock the two Churches have only themselves to blame. The Church in Wales for saying in its submission that it was in an identical situation to the CofE and 'wanted whatever the CofE was getting' - well they now have that... The CofE surely knows it has behaved unreasonably and in a bullying, hectoring manner towards the government. You can only work with people who can be worked with and as regards same sex marriage they have declared war on the government (Sentamu anyone? calling Cameron a dictator?). The CofE has been instrumental in whipping up the passions of the Tory fringe. And they surely know that.

So the CofE entirely merits what is happening. (Some people are attacking the govt for their quad lock - I won't - these churches are simply not playing fair with the govt).

All the Church in Wales needs to do is write a letter to the relevant minister saying they don't want the quad lock and are happy with the triple lock. After all the E+W Bill has not yet been published.

The CofE can also write a letter. As they have 26 members of Parliament sitting in the Lords they can also amend the legislation themselves when it comes to the Lords.

What is worse than a quad lock? For the CofE being in the situation of agreeing it or asking for it to be lifted (thereby agreeing a triple lock preserves religious freedom on its own).

It is exquisite to see the CofE squirming and wriggling on this particular hook. I take no pleasure in seeing the Church in Wales caught up in the game playing of the CofE and hope they extricate themselves from that as soon as possible (though that necessitates them intoning that their situation is *very different* to that of the CofE....)

Posted by: Craig Nelson on Friday, 14 December 2012 at 9:55am GMT

The Bishops don't like it because it show them for what they really are. Such an ugly reflection makes them question if their souls and rationales are quite as pure as they advertised.

Posted by: MarkBrunson on Friday, 14 December 2012 at 11:24am GMT

Craig I entirely agree. Or as I put it in a tweet

@c_of_e http://t.co/ScbYJoYC by backfiring of its lobbying efforts, or as Richard Mottram famously said http://t.co/lPmEgsTK

Posted by: Simon Sarmiento on Friday, 14 December 2012 at 11:27am GMT

The legal clarity imposed by the Government puts an end to clerical double-talk and double-think. The possibility that priests would celebrate clandestine and confusing samesex marriages (as they might discreetly bless a samesex couple) of course troubles lawmakers.

Posted by: Spirit of Vatican II on Friday, 14 December 2012 at 11:59am GMT

'as opposed to other religious groups who will be allowed to opt out – should halt concern' (Jerome Taylor)

No ! More misinformation ! The 'other religious groups will be allowed to' OPT IN !

Be nice if writers could get the basics right when purporting to enlighten the public.

Posted by: Laurence Roberts on Friday, 14 December 2012 at 12:36pm GMT

Craig:

So much for my so-called scaremongering http://www.thinkinganglicans.org.uk/archives/005557.html The need to legislate the quadruple lock is merely to protect the government's own position.

As I replied to you on TA (22nd June): '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.'

'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.'

BTW, the locks are decoys, calculated to disperse a uniform voice of combined opposition by encouraging each religious organisation to fight for its own corner. Meanwhile, the ICBM of genderless marriage is deployed.

Hopefully, the CofE will see through it.

Posted by: David Shepherd on Friday, 14 December 2012 at 2:00pm GMT

"Meanwhile, the ICBM of genderless marriage is deployed."

You're calling two people who love each other, and want civil marriage's rights AND responsibilities (w/ a possible faith blessing, as each faith group sees fit), an ***intercontinental ballistic missile*** (of the sort that might KILL tens of thousands)?

My God, David, do you ever listen to yourself? For Christ's sake!

Posted by: JCF on Friday, 14 December 2012 at 8:02pm GMT

Dear David

I think you slightly miss the point. If you and I were both bishops (this is a strange thought but bear with me) then, although we held different sides of the argument we would both be broadly in favour of the fourth lock.

But the Church of England is very unhappy with the fourth lock. They haven't asked for it; weren't expecting it; don't want it - it makes them look like they're anti-gay (that thought had never crossed anyone's mind before).

So which is it? Either it is entirely needed - if the Church of England looks anti-gay that might be because it is. If it's upset at that it can allow Civil Partnerships (the ones they so fully support) to be celebrated in Churches. Or not if they're happy for the general populace to draw the conclusion the CofE is a bunch of homophobic sex obsessed weirdos. There's only so much the State can do to protect the Church from its own prejudices.

Or it is not needed (I assume that's what's being said at the moment). In which case the CofE needs to say what it would like in its place. And in doing so they would part company with you in your view the lock is necesary.

I don't think Schalk and Kopf is at all relevant. The ECtHR upholds freedom of religion and allows national bodies to balance competing rights.

As for the CofE 'seeing' anything I have my doubts - what they 'see' at any given time seems to change day by day by whatever turn of mood afflicts them (usually a whining victimhood type of mood from what I see).

Posted by: Craig Nelson on Friday, 14 December 2012 at 11:33pm GMT

Genderless marriage?
Are same sex couples no longer male or female? What happens to them when they marry?

Posted by: Erika Baker on Saturday, 15 December 2012 at 11:11am GMT

Erika:

If there is only one institution of marriage for everyone, whether heterosexual, same sex, transgender, or intersex, the proposals promise to end such discrimination by identifying the lowest common denominator for all. I've been told by my liberal opponents that sex and gender are not one and the same. The only solution would be to remove gender references entirely from the single institution of marriage. That would be genderless and frankly, I'm surprised the government didn't.

Unless, you want a two-track system of marriage, that discriminates between heterosexuals and homosexuals. 'Perish the thought!'

Posted by: David Shepherd on Saturday, 15 December 2012 at 11:50am GMT

David,
you have a point!
It will be interesting to see how the Bill is worded. If it speaks of "two people" and does not define them as "a man and a woman or two women or two men", then it would be open to all those groups of people you mention.
We live in hope!

Posted by: Erika Baker on Saturday, 15 December 2012 at 4:14pm GMT

TO ERICA>>>>

("Unless, you want a two-track system of marriage, that discriminates between heterosexuals and homosexuals. 'Perish the thought!'")

Erica, your unnecessary sarcasm does not become you.

Posted by: Colin on Sunday, 16 December 2012 at 11:14am GMT

That was David who said that, Colin. As usual. He does enjoy his little cruelties.

Posted by: MarkBrunson on Tuesday, 18 December 2012 at 5:30am GMT
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