Friday, 1 February 2013

CofE briefs MPs on Marriage (Same Sex Couples) Bill

The Church of England has issued this press release: MPs briefed on Marriage (Same Sex Couples) Bill and the Church of England which links to this briefing document (PDF).

The Church of England’s Parliamentary Office has provided a briefing note to MPs on the Marriage (Same Sex Couples) Bill and the Church of England prior to the Second Reading debate in the House of Commons on February 5.

The briefing sets out why the Church of England cannot support the Bill and addresses some of the concerns that have been voiced by MPs about the Bill in relation to the Church of England. These include why specific wording is needed to give the Church of England the same protection as other faith groups and how the devolved legislative powers of the General Synod work.

We have made a webpage version of the briefing note available here.

The summary of the briefing note says:

The Church of England cannot support the Bill, because of its concern for the uncertain and unforeseen consequences for wider society and the common good when marriage is redefined in gender-neutral terms.

This reshaping and unnecessary politicising of a fundamental social institution, which predates church and state, did not feature in party manifestos, was not included in the last Queen’s Speech and has no mandate from the Government’s own consultation exercise. The legislation has also been prepared at great haste and as a result relies on an unacceptably wide use of secondary legislation.

We do not doubt the Government’s good intentions in seeking to leave each church and faith to reach its own view on same sex marriage and including provisions in the Bill to protect them from discrimination challenges. If the Bill proceeds into law it is essential that the various ‘locks’ in the Bill are preserved as drafted. The Church of England, whose clergy solemnize around a quarter of all marriages in England, has sought no more safeguards in substance than those provided for other Churches and faiths.

The Church of England recognises the evident growth in openness to and understanding of same sex relations in wider society. Within the membership of the Church there are a variety of views about the ethics of such relations, with a new appreciation of the need for and value of faithful and committed lifelong relationships recognised by civil partnerships.

Civil partnerships have proved themselves as an important way to address past inequalities faced by LGBT people and already confer the same rights as marriage. To apply uniformity of treatment to objectively different sorts of relationship - as illustrated by the remaining unanswered questions about consummation and adultery- is an unwise way of promoting LGBT equality.

The continuing uncertainty about teachers, the position of others holding traditional views of marriage working in public service delivery, and the risk of challenges to churches in the European courts despite the protections provided, suggest that if the legislation becomes law it will be the focus for a series of continued legal disputes for years to come.

Posted by Simon Sarmiento on Friday, 1 February 2013 at 2:55pm GMT | TrackBack
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Categorised as: Church of England | equality legislation

Both this and the earlier briefing from the RC bishops contain no acknowledgement that other religions have come to a different conclusion. The Government bill has specific provisions for Quaker and Jewish same-sex weddings, to be commenced if communities opt in (as Quakers, Liberal Judaism, and Reform Judaism will).

Could a C of E or RC spokesman please explain why they want to restrict the religious freedom of Quakers and Jews who have considered this matter at length and prayerfully?

Posted by: Iain McLean on Friday, 1 February 2013 at 4:47pm GMT

I note we are back to anonymous briefings from 'the Church of England', again.

Who puts this tuff out while the See of Canterbury lies vacant ?

Posted by: Laurence Roberts on Friday, 1 February 2013 at 7:46pm GMT

yes, 'who are those guys?'

Posted by: Stephen Morgan on Friday, 1 February 2013 at 9:36pm GMT

Laurence —

If you click on the link and read the full briefing document, you will find the answer to your question, viz:

"This paper was produced by the Parliamentary Unit, Mission and Public Affairs Division and Legal Office of the Church of England, at Church House, Westminster. It draws on the formal position on same sex marriage as set out in the official Church of England submission to the Government’s consultation of June 2012, which was agreed by the Archbishops of Canterbury and York, the House of Bishops and the Archbishops’ Council."

Posted by: David Lamming on Friday, 1 February 2013 at 9:50pm GMT

Thank you very much for that, David.

It is hardly a democratic position and has no authority. It is disingenous of some on eto put this stuff out; and rather dishonest.

Soon the church will have loads of married ministers ! It will all be out in the open !

The Church of England has had its chance to do something creative - or at least half decent.

Posted by: Laurence Roberts on Friday, 1 February 2013 at 11:47pm GMT

What is particularly rich is the complaint about secondary legislation given the bishops' handling of the women bishops issue with further 'guidance' to be determined at a later date following passage of the measure.

Posted by: Scot Peterson on Saturday, 2 February 2013 at 9:29am GMT

And now a legislature in another Roman Catholic country has passed marriage equality - and on Candlemass - hard to think of a better day !

When I read of the deputies clapping and cheering for joy, it made it all seem emotionally real, and we have our great joy step in our lower house, slated for Tuesday !

Posted by: Laurence Roberts on Saturday, 2 February 2013 at 5:20pm GMT

"Could a C of E or RC spokesman please explain why they want to restrict the religious freedom of Quakers and Jews who have considered this matter at length and prayerfully?"

Exactly. CoE and the RC's trying to thrust their views on all other religions is disgusting. In the US, we have the same thing, so-called "Christian Conservatives" have been able to dictate to churches that prayerfully have come to the conclusion to support marriage equality.

Oppression is a Christian value?

Posted by: Cynthia on Saturday, 2 February 2013 at 9:32pm GMT

I scanned through the doc as am not really interested in anything the C of E says on this - or indeed - in any other topic (in an age before the Internet we wouldn't know what the C of E thought and I think that was better that way).

I wasn't scandalised by the doc as I have been by other pronouncements that have been made. I observe that the C of E now does believe in the quadruple lock - interesting to see how Labour MPs will feel to have been lied to by the C of E when it was first announced, I think they are hoping their collective pomposity will efface their memories as to what they said just a few weeks ago.

I don't know on what they base their view that the ECtHR will rule against having same sex couples only civil partnerships (there will parts of the UK without same sex marriage and the Established Church will not recognise ssm which are weighty considerations for retaining CPs as an option - the formal teaching of the CofE will be to have a CP not a marriage, after all). The ECtHR seems relatively unconcerned about the states who have no form of recognition for same sex couples whatever so discrimination can't be a ground and there isn't a fundamental right to a CP.

Other than that I found it fairly so so. Not as well written as the RC one but I'm guessing they have better intellects.

Posted by: Craig Nelson on Sunday, 3 February 2013 at 12:17am GMT

Sorry, one other area I couldn't quite fathom was the complaint about excessive use of secondary legislation. I just can't see it - can anyone else point to excessive secondary legislation or to things that are being done by secondary that might be better done by primary? I was of the view that the order making power contained in the Bill was fairly restrained. Am I missing something?

Posted by: Craig Nelson on Sunday, 3 February 2013 at 10:13pm GMT

After this weekend's final Hermeneutic Hui in Auckland, the Anglican Church in NZ looks to be moving closer to same sex blessings and ordination of those in same sex relationships.

Posted by: Simon W on Monday, 4 February 2013 at 6:44am GMT

Can someone explain the point about non-consummation and adultery? What 'logic' breaks down?

Posted by: Colin Penman on Monday, 4 February 2013 at 1:10pm GMT

if you look at it historically, what bothered people about sex was that it results in children. And as a man you had to be pretty sure that those who were inheriting your estate were actually your own flesh and blood.
So it made sense to define sexual intercourse as the one act that can result in pregnancy.
And it is also the one that, if it takes place outside marriage with another man, can again result in a child that isn't the husband's own.

It therefore made sense to say that a marriage that has not been consumed in the particular way that allows pregnancy may be dissolved if one of the partners feels that they had been duped.

And it also made sense to have adultery as a reason for divorce.

But same sex couples can, by definition, not have that one form of sex that can result in pregnancy.
If you ended up having sex with a same sex partner, your affair was unreasonable behaviour, but it did not cause the same potential havoc that a pregnancy by another man could cause.

And because we've got this historic definition, the question the government faced was to find a way of re-defining what constitutes the kind of sex that seals a marriage, or to leave the law pretty much as it is.

It has sensibly opted against a new definition and it has opted to continue to define adultery as something that requires people from opposite sexes.

It will make no practical difference to anything or anyone.

Posted by: Erika Baker on Monday, 4 February 2013 at 5:07pm GMT

Actually, what bothered people was that couples and children optimally benefitted from a permanent shared identity that was established by and inheritable from the marriage.

The conjugal identity conferred by marriage obviously unites the couple, but the fact that it is inheritable generates for the child a factual basis of identity in its origin from both parents. This is based upon a biological fact, rather than just a contestable legal document, or political fiat. Adoption is subsidiary to this arrangement. Even the Bill supports the position that parental identity cannot be contrived by a legal fiction that would confer a presumption of parenthood on a same-sex spouse.

In times when a marriage could be established by a private exchange of vows, consummation was proof of the couple's intention to view the commitment as mutually binding, once honourable conduct thereunto was demonstrated. It still demonstrates the intention to be legally bound by the vows of marriage.

Notably, apart from marriage, there are few free-will domestic agreements that are legally enforceable. This is because there is a responsibility and public interest beyond whatever a couple may think their vows may mean, there is a shared social meaning of marriage. It is a public institution, rather than a private act.

Adultery taints the guarantee of that conjugal inheritable identity. Consummation is the biological fact that inaugurates the binding nature of the conjugal identity: an identity that can also be conferred on the couple's offspring. Presumption of paternity confers automatic joint responsibility for that identity on the male conjugal partner.

These are realities of conferred by marriage and based on a biological reality. It is the absence of a conjugal inheritable identity for same-sex relationships that give rises to the bill's same-sex exemptions from adultery and consummation.

It is not the incapacity to produce children, but incapacity to produce a conjugal identity that can be inherited from both spouses that makes adultery and consummation meaningless to same-sex marriage law. In the absence of these, it is not marriage.

Posted by: David Shepherd on Tuesday, 5 February 2013 at 12:57am GMT

Thank you, both. I obviously understood these concepts in far too simplistic terms.

Posted by: Colin Penman on Tuesday, 5 February 2013 at 11:30am GMT

I have just been watching on TV Maria Miller present to the Commons the Second Reading of the Gay Marriage a Bill.She spoke brilliantly and fairly and took many interventions. She was congratulated by Yvette Cooper when she rose to reply.

The Minister constantly stressed the freedom of the Church of England not to conduct such marriages and the 'four fold lock' which prevented the church being forced to do so.

I felt so deeply ashamed of my Church opting out of fairness ,freedom , the development and stregthening of mmariage in our society and the happiness that the Bill will bring to many same sex couples.
It makes this briefing paper seem petty and despicable

Posted by: Jean Mayland on Tuesday, 5 February 2013 at 1:28pm GMT

Heritability and offspring are not of the esse of marriage, but of the bene esse. They represent possibilities which, even if not realized, do not in any way lessen the reality of the marriage itself.

The "reason" given for marriage in Genesis 2 is not procreation, but loneliness. The "reason" for marriage given in 1 Corinthians is not children, but as a remedy for fornication. Marriage is a phenomenon that must find it essential reality in the relationship of the couple, not in any epiphenomenon or result that springs from that relationship. It is not a means to some extrinsic end, but a thing of value in itself.

This is a philosophical issue, as well as a legal one.

Posted by: Tobias Haller on Tuesday, 5 February 2013 at 3:05pm GMT

A conjugal shared permanent identity is essential to marriage. It exists without offspring. It does confers an identity on the couple which is inheritable and based on a biological reality.

Whatever the motives of the couple, its cause is part of an institution with a shared social meaning. Varying personal motives and the legal cause of marriage should never be confounded.
'For this cause' is preceded by an account of sexual differentiation. Adam may describe what Eve means to him, but God's act of sexual differentiation defines the wider purpose of their union.

A man leaves his father and mother (the descent group) having secured his own identity. He is joined to his wife to form a conjugal identity. (This does not mean that their individual identities are subsumed). The conjugal act follows: 'the two shall become one flesh'.

While some will remind us of Paul's reference to the misuse of this act: 'Do you not know that he who unites himself with a prostitute is one with her in body? For it is said, "The two will become one flesh."'; in the case of fornication, it is not preceded by any lasting commitment to leave the descent group in order to form a shared permanent conjugal identity.

The legal remedies focus on this cause of matrimony. They do not remedy loneliness, neither do they restore relationships. They do uphold the responsibility of both parties to respect the significance of that identity, even when it is repudiated by the actions of either partner.

A reductive view of marriage creates a world in which the Seventh Commandment is optionally applicable.

Posted by: David Shepherd on Tuesday, 5 February 2013 at 8:16pm GMT

"In the absence of these, it is not marriage."

I think you will find that it is.
The law will say so shortly, most people can rightly not get their heads round the weird idea that what makes a marriage is one single act of sexual intercourse.
And I dare say that in a few decades the church will have caught up too.

You are, of course, allowed to continue to believe, purely personally and privately, that it is not marriage. As long as it makes no difference to anyone else, it's the kind of religious freedom I fully support.

Posted by: Erika Baker on Tuesday, 5 February 2013 at 8:52pm GMT

'What business is it of mine to judge those outside the church? Are you not to judge those inside?' (1 Cor. 5:12) The Canon law is unequivocal and CDM2003 remains in place to administer discipline under church control and within the Equality Act 2010.

As I said to you before: 'The Herods eventually managed to shut John the Baptist up permanently. When we look at the escalation of re-marriage, the 'movement of history' was clearly on their side. In fact, after John's execution, the Herods acted with impunity when Salome (Herodias's daughter) married her half-uncle Herod Philip II. As you like to remind us, then as now, life moved on and the sky didn't fall in. (As if morality is measured by short-term consequences).

So what was John's point? What was he arguing for? Well, the better question would be, 'Who was John arguing for?' John the Baptist had the full authority of scripture behind Him and, once again, challenging gay marriage may very well be at odds with the 'movement of history'. I simply don't hold to your progressive assumptions about the movement of Western history.'

As I said elsewhere, both the quadruple locks for the CofE and the absence of any parallel marital presumption of parenthood conferred on the same-sex partner of a birth mother suit me fine.

That's the kind of religious freedom that I fully support.

Posted by: David Shepherd on Tuesday, 5 February 2013 at 10:59pm GMT

in this scenario, is the "birth mother" the partner of a lesbian couple who gave the egg that was fertilised by means of IVF, or the one whose womb it was implanted in and who physically gave birth?

Posted by: Erika Baker on Friday, 8 February 2013 at 7:06pm GMT

The one who was implanted. In the California case, the lesbian couple were married before the four year moratorium. The couple separated and the bisexual partner got involved with a man and became pregnant. She is the genetic and birth mother.

After breaking up with him, she resumed the marriage and gave birth. Under California law, her spouse was presumed the second parent. Although one was in hospital and the other in prison, the court refused to assign custody to the willing father and made the child a ward of the State.

In a Florida case, the couple lived together, but were not in a civil union. As part of the IVF procedure, the egg donor partner signed consent forms (not realising that they relinquished her rights). They separated acrimoniously and her partner, the without any genetic link to the child who gave birth, won sole custody at trial court. The decision was overturned on appeal.

In another Florida case, the birth mother of a child conceived by IVF deserted her civil partner and took the child to Australia. The court ruled that her ex-partner, the egg donor had no parental rights.

The EU position is that the birth mother has priority, regardless of the partner's genetic relationship to the child. HFEA 2008 only covers the assignment of parenthood at birth, not the access to the child, once they separate. The survey (albeit US based) shows that the majority of gay couples will prefer assisted reproduction to adoption.

The presumption of paternity enables the court to place the onus of proof to the contrary on anyone contesting a husband's paternal rights. Marriage secures the right of the child to enjoy the permanent parenthood of both spouses, who are considered a conjugal unit. In the case of UK same-sex marriage, it won't. The shared parenting clause of the recent Children and Families bill might have helped, but the Justice Committee all but rejected it as encouraging default intervention, by making equal time parenting orders mandatory.

Posted by: David Shepherd on Saturday, 9 February 2013 at 2:18pm GMT
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