Wednesday, 19 December 2012
Some legal analyses of the same-sex marriage proposals
Paul Johnson has written an article for the Jurist titled Same-Sex Marriage To Be ‘Illegal’ in the Church of England and Church in Wales. He argues that the effect of an on-going human rights debate in the British Isles and the European Court of Human Rights may have a detrimental effect on the same-sex marriage debate in the UK…
I found this paragraph particularly interesting:
…On the basis of a growing moral panic about human rights in the UK, the government has announced deeply problematic legislation. Whilst they will extend marriage to same-sex couples in England and Wales, they will also amend the Equality Act 2010 to establish a form of legal discrimination in marriage based on sexual orientation. They will also write legislation to make same-sex marriage in a Church of England or Church in Wales church “illegal.” The UK government will, therefore, follow a number of other states, such as those African states like Nigeria, that are regularly held up in the UK as the embodiment of homophobia, and introduce legislation designed to prohibit same-sex marriage in a particular context…
Paul also wrote this article last June: Same-Sex Civil Marriage Gives Deference to Church of England Canon Laws
Scot Peterson has written an article, now republished at Law and Religion UK titled Same-sex marriage, National Churches and the quadruple lock.
On 11 December the government announced its response to the consultation on same-sex marriage that took place from 15 March to 14 June 2012. The initial consultation concerned how (not whether) to proceed with same-sex civil marriage. In its response to the initial consultation, the Church of England failed to respond to the question that the government had asked. It took the position that all marriage (civil or religious) was the same and that same-sex marriage should not be offered by the state. The church failed entirely to say how it could be offered, arguing that same-sex marriage should not be offered at all, even by the government in non-religious ceremonies…
And he concludes:
It seems clear that the constitutional, political and legal complexities of the law of marriage in Wales surprised the government. But good, sensible argument, not a generalized attack on the government’s competence is needed. And extending the omnishambles argument to the Church of England is entirely unfair given that Church’s general, public refusal to cooperate with the consultation in the first place.
The Church of Wales may have received a temporary scare, which will make it think twice in the future about trying to ride on the coat-tails of its established equivalent in the east. The Church of England may have received its just deserts for being obstinate. But the government should not be the target of general criticism for an honest mistake on an obscure point of law, which was unforeseeable when the Church in Wales did not address this point, or any other, in its response to the consultation.
The problems in this bill can easily be corrected. This is a cross-party question of policy that addresses a felt need by LGBT people and religious freedom for minorities like Quakers, Unitarians and Liberal Jews as well as for those, like the Roman Catholic Church and the Church of England, who disagree. It should not be turned into a political football.
Anya Palmer has written in the Solicitor’s Journal_ One step forward, two steps back.
Posted by Simon Sarmiento on
Wednesday, 19 December 2012 at 6:53pm GMT
The government’s decision to make it illegal for the Church of England to conduct
same-sex marriages leaves Anya Palmer questioning its position in society.
You can make a Permalink to this if you like
Church in Wales
| Church of England
| equality legislation
Paul Johnson's paper is a shocking, but not surprisng inditement of the leadership of the Church of England.
'The CoE's argument regarding canon law is without any foundation. Canon law, under the government's proposals, will be left untouched. The CoE could, should it wish to, strengthen the heterosexual exclusivity of its canon law on marriage through the introduction of new measures prohibiting same-sex marriage on religious premises in the future; the proposed statutory legislation on same-sex civil marriage would provide no bar to it doing this. In light of this, the focus on canon law in the CoE's response to the consultation must be seen as a cynical strategy designed to stall this important development in civil marriage law. It is a tactic that attempts to obscure and mystify the relationship between canon and statutory law in order to convince of the CoE's legal authority in marriage. Yet neither canon law nor the CoE has any legal influence in respect of civil marriage that remains regulated solely by common and statutory law. Whilst the CoE's response to the government's consultation demonstrates its trenchant ideological opposition to the social evolution of marriage, its reliance on canon law reveals how threadbare its arguments have become. In place of robust and rational argument, the CoE have resorted to incoherent and flawed legal claims which, once subjected to scrutiny, fail to provide any justification for preventing gay men and lesbians in loving, permanent and life-long relationships from contracting civil marriage.'
Perhaps it is in continuity with the tradition of Henry V111.
Excuse this question, coming from an ignorant Yank, but one perplexed by the seeming complexities of the church state legal tangle over same-sex marriage.
As I understand it, and I hope someone will correct me if I'm mistaken, it seems the major problem is the right of any English couple to marry in their parish church. So if marriage is opened to same-sex couples, the church simply could not say no under the present understanding of that right to be married.
I think I'm correct so far. Where I'm not sure is in the analogous question of divorce: that is, are there couples, one or both of whom is divorced, who are permitted to marry under English law, but may be denied a religious marriage in the parish church?
According to a BBC website article on the subject, Charles and Camilla "could not marry in church. They had to marry in a civil ceremony, although church rules allowed their marriage to be blessed in church afterwards." (http://www.bbc.co.uk/religion/religions/christianity/ritesrituals/divorce_1.shtml)
So if the church can indeed depart from the civil rules --- and if they need a canonical change to do so, then surely they can do so. But it would seem to me they do not need any such change in the present case because the church marriage law only allows for mixed-sex marriage.
Is this being made more complex than it need be?
I was really struck by the *moral clarity* of Paul Johnson's analysis. Would that this quality was heard from more episcopal seats in the CofE!
Answer to para. 3 question: Yes.
Bigger question: your analogy holds. Both re-marriage after divorce and ssm are prohibited by canon law. The church allows exceptions in the first case (re-marriage). But opponents of ssm want to be sure that there is no exception, so that NO clergy can perform ssm's. (I just noticed some similar rumblings from the Islamic community...)
Opponents of SSM therefore make it look like there is a risk that under a broad law they would have to marry same-sex couples, ignoring the exception for divorce (there was also one at one point for marrying a man to his deceased wife's sister, and Frank Cranmer has pointed out the existing one for transgendered people). But that was why they got the fourth lock.
Charles and Camilla could have married in church had their vicar agreed. (In this case it was probably Charles' mother who said, 'No'.) What opponents hate is that this might move in a similar direction.
From one Yank to another, it's all quite confusing, and the opponents SSM have an interest in making it as confusing as possible, so advocates get bored and give up, which is what the government probably did.
Charles and Camilla could have got married in a C of E church. General Synod gave to parish clergy the right to decide whether to do this. Many do but some do not. Some would have refused as Charles and Camilla were involved in the break up of Charles marriage to Diana. Some clergy would still have taken this step.
It should not be beyond the wit of the C of E to allow clergy to decide whether to perform marriages between same sex couples or not
Section 8(2) of the Matrimonial Causes Act 1965 provides: "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."
But it's up to him. He doesn't have to do it but he can if he wants to.
In 1957, the Upper House of the Convocation of Canterbury approved a policy (not a law) against any divorcee with a living spouse being allowed a second marriage in church.
In 2002, this policy was relaxed, and guidelines were issued discouraging but not ruling out remarriage in church, and it was under these that the Archbishop of Canterbury refused to marry the Prince of Wales (whose own former wife had by then died) to Camilla Parker-Bowles (whose husband was alive and himself remarried and who supported her own later remarriage, which he attended).
Of course, the Archbishop of Canterbury then said he would not be available even for a service of blessing, because he gave higher priority to attending the funeral of the Pope, with the result that the next Supreme Governor of the Church of England postponed both his civil wedding and the service of blessing afterwards so as not to lose the involvement of the Archbishop altogether.
Paul Johnson's piece applies strained logic and, in some cases, bare-faced assertion.
He quotes as the CofE does from Section 1(3b) of the Synodical Government Measure 1969: '"no Canons shall be made or put in execution [...] which are contrary or repugnant to the Royal prerogative or the customs, laws or statutes of this real." and then claims: 'since the government is proposing legislation that relates only to civil marriage and not to marriage that falls within the ambit of canon law, the CoE's canon law on marriage will not be contrary to the "Royal prerogative or the customs, laws or statutes" of England.'
First, the law quoted specifically demands that the Canons of the Church do not contradict the laws of England. The clear purpose is to prevent disharmony between Canon law and the laws of England. To change civil law to contradict the Canon law defeats its purpose of being part of the laws of England.
Since marriage refers to what the law recognises as a valid union itself, the means of entry (civil or religious) does not matter. Marriage confers a common set on privileges and entitlements, not one for civil and another for religious. I'd defy anyone to prove that marriage by civil means confers a different set of rights to marriage by religious means.
Canon law, one part of English law agreed by Parliament says it is only the union of a man and a woman that can be recognised as marriage. It is proposed that the Matrimonial Causes Act, also part of the same English law agreed by Parliament, will be amended to say otherwise.
There is a clear disharmony over which of these Parliament approved laws is the legal definition of a valid marriage. Can religious institutions opt to only recognise religious marriages? Of course not, because marriage is marriage!
As I understand it, the distinction that Tobias asks about with regard to divorce arises because divorced status is not a protected characteristic under human rights law or the Equality Act 2010, whereas sexual orientation is.
Incumbent clergy have discretion over whether they choose to facilitate (ie undertake themselves or arrange for another to do on their behalf) the solemnization of marriages where one or both of the couple has a previous partner still living, and can choose between cases according to circumstances or simply refuse all.
Should same sex couples be eligible for marriage in England then no similar local opt out would be possible as it would contravene English and European law. Any aggrieved party could sue the incumbent (not the PCC, which has no locus in the matter).
Whatever one thinks about the merits of same sex marriage it is clear that a significant number of clergy would refuse to make provision in their churches and would be taken to the civil courts. Some would revel in their martyrdom. I have heard nobody seriously suggesting within England that this would be the best way forward, hence the only legal option is some sort of denominational lock out that trumps the 2010 Act and other relevant equalities legislation.
Interesting both UK and Scottish govts are doing more or less the same thing at more or less the same time on this.
A more consistent and simpler approach would have been - these are the people who can get married; these are the people who can conduct marriages; there is no compulsion at law to marry for religious bodies/ministers; conduct of ministers of religion to be left to religions to manage their own internal concerns as a matter of internal discipline.
The more contorted plans we have (the double opt in; so called quadruple lock) are designed to appease the CofE and Tory MPs - and failing miserably and are completely unneccsary but whereas they are designed to reassure they have ended up spreading panic as one have to go to ever greater lengths to put up 'locks' to reassure the paranoid. The problem with paranoid people is they're paranoid and no number of locks will ever be enough. I'd wager all the locks in place haven't gained a single additional vote for the Bill.
If the Bill goes through in its current state I'd be OK with that. If not then we need to wait for a new government to legislate hopefully in a simpler manner. In any case the UK is an object lesson for other countries on how not to do it.
New Zealand's approach (in a private member's bill) seems much more satisfactory (at least as a starting point):
PS I think the locked up version will create more problems for the CofE in the end as it will find itself locked into a mandatory discrimination for decades. Is it too late for a rethink?
It's important to differentiate between statutory restrictions regarding the re-marriage of divorcees and those relating to protected characteristics, such as sexual orientation. The ECHR has declared that it demands particularly weighty reasons for exclusions resulting from sexual orientation.
There is also a general misunderstanding of how the common law right of parishioners to be married in church came into existence. It is part of a general proprietary right, rather than conferred by statute.
Lord Hardwicke's 1857 Marriage Act implied there was a new legal duty, but did not initiate the legal right to marry in church. In any event, the repeal of the Act in 1949 would have ended this, by providing the freedom to marry in register offices and non-Anglican places of worship.
'Notwithstanding the insufficiency of Argar v Holdsworth, it is argued that there is a common law right to marry in the parish church. However, the right has nothing to do with Lord Hardwicke’s Marriage Act. It is proprietary in origin. The parish church is the parishioners’ church. It was originally provided, donated, so that the parishioners might worship, receive religious instruction and the sacraments from the minister, and have their marriages solemnised. The solemnisation of parishioners’ marriages is one of the purposes for which the parish church exists.
'The rights of parishioners over their church, though not specifically their right to marry in church, are alluded to in the dictum of Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976 that:
‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’.
"it will find itself locked into a mandatory discrimination for decades."
I still don't understand this.
Whether there is a simpler way of doing this or not, the only thing the church has to do is to vote to change its Canons and then ask Parliament to approve that change.
Pretty much the same thing it would have to do without the fourth lock if it just wanted to "opt in".
Does this lock do anything at all other than sound fierce?
David Walker suggests that a local opt out would not be possible under European law because gay people are a protected class.
But if I am not very much mistaken the Scottish legislation is proposing the impossible.
Thanks for the clarifications. It does indeed seem people are making this more difficult than it really is.
As to being a divorced person in re human rights, at least in some jurisdictions being divorced comes under the heading of "marital status" (e.g., Ontario) and no one is to be denied public access to whatever on that basis. It doesn't mean one has access to divorce.
My point is about things the [even established] church disallows that the state allows -- and the apparent fiction that they need to be in sync.
As I recall the C of E did not elect to marry divorced people initially (or ever ?).
What happened was new secular legislation had the unintended (?) and indirect effect of permitting C of E ministers to marry divorcees legally. BUT only by going against the rule of Convocation forbidding it.
When serving my Title,1978- 1981, my boss married divorcees, and I was given no choice by him. Gradually, more and more vicars married divorcees, as there was nt much the bishops could do about it, espeically with the now much-lamented
In my above comment yesterday (Thurs 20yh) I ommited the crucial words 'as / registrars registrars'. Sorry.
'effect of permitting C of E ministers, as / because registrars to marry divorcees legally.
What I meant by locking in for decades was not that the Church could not through Synod amend its canons and seek a straightforward parliamentary approval.
What I had in mind was a situation similar to the women bishop situation but the church's decision making becomes stuck (as it surely would) for decades if we are lucky. In a sense the legislation (both 4th lock and opt in) is there explicitly there to stop drift towards the marriage of same sex couples.
Had that been in place for divorced couples there would probably be no remarriage in the CofE today (some would see that as a good thing).
If this legislation passes then we'll all have to live with the uncomfortable compromises it enshrines. If it doesn't pass then a future government should not try to introduce the same Bill but start from scratch and aim at something simpler - or allow a private member's bill to do the same.
Thank you Craig,
so how did it work with marriage after divorce? Did General Synod not have to conclude that individual clergy could offer marriages but that no-one would be forced?
Was that not a similar kind of opt-in?
Marriage may well be marriage, but the point at issue is not the substance of marriage, but who may officiate as "registrar." Getting into "two sorts of marriage" (whether there is a case to be made for it or not) confuses things. There is no need for definitional issues concerning the nature of marriage, and the church could legitimately retain its present requirement that it only participate in the marriage of a man and woman. The issue then is not "who can be married" but "who can perform the ceremony." It is abundantly clear that the church now has the option to decline to marry at least some whom the state is happy to wed.
We are dealing, in short, with the act, not the estate, of marriage.
Or so it seems to me.
Whether the state should tell the church what it can and can't do is, again it seems to me, where much of the trouble with this "lock" arises. I'd be more comfortable with the church being free to opt-in if it chooses, as indeed I firmly believe one day it will. Ever so much simpler.
Question is how would the CofE opt in?
If amending canons requires a 2/3 majority in the three houses it surely will never happen (or at least not for a century or so).
To my way of thinking what should happen is that whoever has a legal power to marry may marry whoever is legally able to enter into marriage. The matter obviously gives rise to discipline within the religion itself.
One could argue that questions of discipline are for each church and not for the State to police (which is what the opt-in procedure does - I think the so called 4th lock is really cosmetic when looked into fully).
At its heart the real question is not priests being forced to marry people against their beliefs but priests being prevented from marrying same sex couples where they want to do so.
As I say, in all probability the current Bill will pass (then one imply lives with it). If it doesn't (e.g. gets massacred in the Lords) then we should think things through again at a future attempt to legislate. (I do though still want the current proposals to pass, however).
Craig, I take your point, and I think "on the ground" that is the way it will work out. I believe the church has a right to its own disciplines, including enforcement; and individual clergy have the right of conscience, with the willingness to accept the consequences.
Stepping back some many decades, the controversies over the Ritual movement created similar problems: clergy were willing to risk jail for chasubles, I've heard tell. Was it really needful for the state to enforce rubrics?
There does arise the question of uniformity of rite: and the degree to which authorized rites are needed. The church could simply refuse to provide a rite; so some creative improvisation, together with the well known Anglican ability to close one eye and look t'other way, might muddle through until the climate has changed sufficiently to "permit" what has been going on all along...