Tuesday, 28 May 2013

Two articles on the Establishment of the CofE

Lord Mackay of Clashfern who was Lord Chancellor, 1987-1997, delivered the Richard O’Sullivan Memorial Lecture, on behalf of Theos and Law and Justice: the Christian Law Review, on 9 May.

The text of the lecture has been published by Theos, and can be found here: Does Establishment have a Future?

The same page has links to recordings of the lecture itself, and the following Q&A session.

Last week, The Tablet carried an (unsigned) editorial comment about the impact of the Marriage (Same Sex Couples) Bill on the establishment of the Church of England. The full text of this article is, with the express permission of the Editor of The Tablet, reproduced below the fold.

Editorial from The Tablet issue dated 25 May 2013

The Church of England’s position as “the Church by law established” has been weakened by the progress of the legislation to permit the marriage of same-sex couples. Not only is the law on marriage under review, but so is the nature of the Church-State relationship.

What is surprising is how few in the Conservative Party, trad itionally the party of throne and altar, seem to be aware of this. It is as if the nation is taking a significant step towards disestablishment in a fit of absent-mindedness. Perhaps not so absent-minded on the part of the more vociferous secularists, however, who have been aware all along of the potential for the gay-marriage issue to further their own agenda. They needed the Church to do its best to stop the legislation, and fail. Although the battle is not yet finished, events do appear to be going their way.

The clergy of the Church of England solemnise about a quarter of all marriages in England, and so far the law of marriage they administer has been the law of the land. This is unlike the case of the Catholic, Jewish or Muslim communities, who have their own marriage laws, customs and courts where their own doctrines of marriage take precedence. Thus the law of the land can say two people are married, but the internal regulations of each faith community can still maintain that they are not. They can ignore the civil recognition of gay marriages if they want to, in a way the Church of England cannot. At least until the gay-marriage legislation becomes law, those that the common law of England says are married are those the Established Church says are married, and vice versa, with no distinction. In a briefing note to MPs, the Church of England explained that “the assertion that ‘religious marriage’ will be unaffected by the proposals” was misleading, as “at present there is one single institution and legal definition of marriage, entered into via a civil or religious ceremony. Talk of ‘civil’ and ‘religious’ marriage is erroneous…”

Henceforth, if and when gay marriage becomes law, the Church of England will be like the Catholic, Muslim and most Jewish communities in having a definition of marriage that excludes same-sex couples. The Government has drafted legal protection for the Church of England that in effect bans it from marrying gay couples. But that will put in place the very distinction between “civil and religious marriage” which the briefing document rejected, the absence of which has until now been one of the defining characteristics of the Church of England’s unique status.

So the Church is being forced to move towards becoming a private self-governing institution with its own internal rules, alongside other institutions in civil society – in other words, towards disestablishment. Some inside the Church of England will welcome that as good for the Church. But the larger question for the rest of society, including other faith communities, is whether that is good for everyone else. Indeed, some outside will hail it as a further step towards the exclusion of religion from the public square, where faith becomes a purely private matter. That is precisely how the victory for gay marriage has been greeted in France. At least the French have had a better idea of what is at stake.

Posted by Simon Sarmiento on Tuesday, 28 May 2013 at 11:00am BST | TrackBack
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Categorised as: Church of England

It is certainly true that the established church and state will have adopted different views on marriage, but that is just a plain view of the matter.

To do any different the state would have to subjugate itself to the church, which would not be proper in a pluralistic democratic society.

If the Church of England had accepted civil partnerships or shown an indication that same sex marriage was in some way under consideration there would be some point in delaying to allow church and state to move in concert, which would have been preferable.

However the Church of England set its face against performing civil partnerships and vowed unending opposition to same sex marriage. If ever same sex couples are to marry it will be against the wishes of the CofE and will at the same time be accompanied by dire warnings of undermining the establishment of the CofE. That needs to be factored in to the debate as a given.

I actually think the behaviour of the Church of England has been mendacious and despicable and that is far more damaging to its establishment than anything else. They do though retain seats in the Lords, carry out heterosexual marriages (even of atheists) and carry out a coronation service and various other trappings of establishment that remain.

One senses that the Church of England was party to some kind of secret deal whereby they would allow civil partnerships for the gays whereby some sort of assurance was given that marriage would never be discussed. I have no direct evidence of this but this is the only thing that can explain the behaviours of the main players.

Posted by: Craig Nelson on Tuesday, 28 May 2013 at 11:38am BST

It seems to me to have very little to do with the "faith" as such, but to be narrowly focused on the issue of the "recognition" of marriages performed, in this case, only by the civil authority. The question then becomes, what does such "recognition" entail? What does "being married" provide to one -- or to a couple -- in the Church of England? Are there posts that only married persons can hold? What rights, privileges and responsibilities are attached to the estate of marriage as far as the church is concerned, affecting participation in the life of that church? I ask this question in earnest, as an American I have no knowledge of any peculiar requirements or privileges in this regard; and in fact our Canon Law in TEC specifically restricts the application of marital status as a qualifying characteristic for office or ministry.

Otherwise, we are simply left with the fact, not so much that there are two sorts of marriage, but that some people are allowed to marry under civil law who cannot marry under religious law. Again, not to overly display my ignorance, but wasn't that the case for a time regarding persons whose former spouse was still living -- that is, was there not a time (prior to 2002) when divorced persons could be married under the civil law but not in church? Did that mean there were two sorts of marriage?

Posted by: Tobias Haller on Tuesday, 28 May 2013 at 2:56pm BST

I believe this editorial fails to grasp the full meaning of the CofE's submission and the fact that the Bill now before Parliament no longer proscribes marriage within a religious context as was proposed.

The government, it seems to me, has fully accepted that there is only one sort of marriage and that it is up to religious bodies to opt in to performing them. The Church of England has no courts to decide whether gay marriage is lawful other than the Queen in Parliament. So we will be in the same position as those who were divorced and remarried before the Church of England allowed remarriage. There is no doubt we will be married and the Tablet is wrong to suggest that this will be some difference. Doubt will exist, but not doubt of our lawful state, that would not be possible once the Supreme Governor gives her assent.

Posted by: Martin Reynolds on Tuesday, 28 May 2013 at 3:20pm BST

I think Craig Nelson's view that the mendacity of the CofE has something to do with it being told that gay marriage would not happen is true.

Under the last Labour administration the entreaties by LGCM for gay marriage were treated with contempt by both Stonewall and government. We couldn't get a hearing from the most juniour official. When CPs were introduced there were a great deal of back room manoeuvres, and it was only after the raft of secondary legislation leaving Civil Partnerships on a par with marriage that we heard the rumbles.

I recall the Bishop of London fulminating at a meeting he held with his evangelical clergy at this time. It was his claim that the CofE had been deceived and that they had been promised there would be clear blue water between marriage and civil partnership. This, he said, had not proven to be the case and the government had surreptitiously introduced gay marriage in everything but name.

I have been looking for this address, I though I had a copy, It was published on line but have not found it again. Is there anyone out there who knows where to find it?

Posted by: Martin Reynolds on Tuesday, 28 May 2013 at 4:20pm BST

The Tablet editorial: 'What is surprising is how few in the Conservative Party, traditionally the party of throne and altar, seem to be aware of this. It is as if the nation is taking a significant step towards disestablishment in a fit of absent-mindedness.'

If I were feeling mischievous, I might suggest that it's less surprising if one calls "disestablishment" by its hypernym, "privatization".

But actually, I think the Marriage (Same Sex Couples) Bill, if anything, deepens the Establishment. It creates new connections between Church and State, because of the Henry VIII clause in section 15(2), which empowers the Lord Chancellor and/or the Secretary of State to amend both primary and secondary ecclesiastical legislation related to marriage [*]. As I mentioned on a recent thread, I'm quite content with all of this, but I suspect a lot of people on here won't be.

[*] In the case where primary legislation is being amended, this comes with the safeguard of an affirmative resolution procedure.

Posted by: Feria on Tuesday, 28 May 2013 at 7:54pm BST

"Some inside the Church of England will welcome that as good for the Church."

Friendly (fraternal!) observer here, but I certainly welcome it as good for the Church.

"But the larger question for the rest of society, including other faith communities, is whether that is good for everyone else."

It's good for people---inc. God's LGBT people. If those faith communities want to *stand with* God's people, well then.

"a further step towards the exclusion of religion from the public square": the hyperbole of the (Pretend) Victim. Spare me.

"That is precisely how the victory for gay marriage has been greeted in France. At least the French have had a better idea of what is at stake."

Hence, violent anti-gay riots? Is that what The Tablet is endorsing?! O_o

Posted by: JCF on Tuesday, 28 May 2013 at 10:56pm BST

What Anglicans outside of the Church of England find most interesting about the proposed legislation is this: If the House of Lords passes the Bill, and H.M. Queen Elizabeth II adds her approval; how can the Church of England (whose titular Head is H.M.) possibly continue to deny the acceptability of Same-Sex Marriage?

Whether, then, the Church continues to refuse to solemnise such Marriages must surely affect in some way the offical relationship 'twixt Church and State. Perhaps it is time for consideration of the problems of a theocratic government.

Posted by: Father Ron Smith on Wednesday, 29 May 2013 at 12:03am BST

"At least until the gay-marriage legislation becomes law, those that the common law of England says are married are those the Established Church says are married, and vice versa, with no distinction."

But the state has been marrying divorced couples with the Church's disapproval for a long time.

Posted by: C Shelton on Wednesday, 29 May 2013 at 5:44am BST

@Father Ron Smith

The Queen does not approve laws, she does not even sign them, they never come near her. In fact royal assent has not been given by the monarch personally since 1854.

Royal assent is essentially a legal function and not many people in the UK associate the Queen with any legislation, good or bad. She has not power to veto so she gets no blame or credit.

While there is no legal separation between church and state in the UK there is somewhat of a cultural one.

Posted by: CRW on Wednesday, 29 May 2013 at 7:51am BST

I don't think that the church regarded remarried divorcees as not married. It just refused to perform the ceremony. There are still plenty of vicars who do so refuse. It happened to me five years ago. Since I then went on to be married in a different parish by a different vicar, presumably the first one would now recognise me as married, even if he thinks I shouldn't be.

Gay couples may well find themselves in a similar position in a few years' time - looking around for an equal marriage friendly parish as I had to find a divorce friendly one. But even under the present proposals, I don't see how a C of E cleric could refuse to acknowledge a marriage that is valid under English law, even if s/he didn't think it should be.

What a very sorry world these bigots want to create.

Lord have mercy.

Posted by: Will Douglas Barton on Wednesday, 29 May 2013 at 8:49pm BST

I had understood that the prevailing legislation was the single clause Act passed in 1967 which says the following:
(1)An Act of Parliament is duly enacted if Her Majesty’s Assent thereto, being signified by Letters Patent under the Great Seal signed with Her Majesty’s own hand,—
(a)is pronounced in the presence of both Houses in the House of Lords in the form and manner customary before the passing of this Act; or
(b)is notified to each House of Parliament, sitting separately, by the Speaker of that House or in the case of his absence by the person acting as such Speaker.
(2)Nothing in this section affects the power of Her Majesty to declare Her Royal Assent in person in Parliament, or the manner in which an Act of Parliament is required to be endorsed in Her Majesty’s name.

It looks from this that the Queen is still very "hands on" ..... but it may be that I have missed some new procedure.

Posted by: Martin Reynolds on Thursday, 30 May 2013 at 8:24am BST

This all seems quite otiose. Having witnessed the appalling attitudes of French Catholics at close quarters during the debate on "mariage pour tous," I breathe a deep sigh of satisfaction to see the two young men in Montpellier tie the knot. If Catholics think that they can secure a place in the public square only by playing on primitive reactionary instincts, they do not deserve a place there. President Hollande has given far better leadership than the Cardinal Vingt-Trois or the Chief Rabbi. Solvitur ambulando, or amando. All the churches have a huge amount of apologizing to do for how they have blocked the way to happiness for millions of lgbt folk throughout history. Some RC moral theologians want to see sacramental marriage for samesex couples, and it would be nice to think that we will see movement in church ranks on this matter SOON.

Posted by: Spirit of Vatican II on Thursday, 30 May 2013 at 9:21am BST
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