Monday, 24 February 2014
More about historical error in the House of Bishops statement
Following the publication here of Linda Woodhead’s article titled An error in the House of Bishops Guidance on Same Sex Marriage some further discussion continued at Law and Religion UK where Frank Cranmer wrote An error in the House of Bishops’ Guidance on Same Sex Marriage? – perhaps not.
Now, Scot Peterson has published Generalizations, Just-So Stories and Marriage Law and Doctrine. He reviews the discussion so far, explaining that:
..As Iain McLean and I have written in our recent book, Legally Married, the law of marriage in the UK has changed frequently. Here, the question is whether the Marriage (Same-Sex Couples) Act 2013 is ‘the first time’ there has been a divergence between
the general understanding and definition of marriage in England as enshrined in law
the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.
After laying out the facts he is in no doubt about the outcome, finishing with:
Posted by Simon Sarmiento on
Monday, 24 February 2014 at 7:44am GMT
…Conclusion: Woodhead’s argument is correct, and Arora and Cranmer are mistaken. The House of Bishops’ statement is in error. The civil law in England and Wales (and elsewhere) has frequently diverged from religious rules about marriage. Social norms about marriage have moved ahead, public policy about marriage, expressed in laws, has evolved, and so has church doctrine, but not always at the same rate. It would be honest of the Church of England, and its bishops, to admit that fact and get on with it.
You can make a Permalink to this if you like
Church of England
As that magisterial historian of the mid 20c Dean Norman Sykes put it " If the Church is going to appeal to history, to history it should appeal".....one wonders where the historical expertise used by the ecclesiastical bureaucracy comes from...It often doesn't appear to have a rigorous grounding in contemporary historical scholarship.
Even the simple fact of the Church of England's turnaround on the issue of Divorce and Re-Marriage in the Church, gives ample evidence of the Church having changed its Marriage doctrine in the past.
This renders obsolete any argument that the Church's acceptance of Same-Sex Marriage would be unable to be accommodated by the Church, on account of the unchanging dogmatic structure of what a Christian Marriage consists of.
I think it's great that heavy-weight academics are weighing in on this. It is so important to discredit our generically low-grade bishops on this issue.
Back in the 1960s the church produced a report on divorce and remarriage, called IIRC "Putting Asunder". The group was chaired by the then Bishop of Exeter, Robert Mortimer, who came to address us at Theological College. I remember tackling him on this very issue of whether it was right that civil law and church law should diverge, and particularly on the issue of whether the church was right to propose a change in the civil law to something the commission saw as more reasonable and just, while at the same time saying that it would preserve its own discipline irrespective of what civil law might say. Bishop Mortimer refused to accept that there was any inconsistency in this. Civil law is always open to change, but God's law isn't. There was no need for the two to match in every particular. Bishop Robert was a scholar and knew his history. However another speaker a week or two later, Dr Sherwin Bailey, was able to show conclusively that the church's law also changed quite a bit over the centuries, largely by dint of changing the definitions of what was being referred to. He too was a scholar who knew his history.
The problem is that we tend to pick and choose the bits that help our case (what we decided before we bothered to look at the evidence?). The truth everyone needs to recognise is that marriage discipline has been to some degree negotiable (largely for changed and changing pastoral considerations) since New Testament times - look at Jesus' logia on the matter is a synopsis, and the different approaches in East and West, in Catholicism and Protestantism. What is new in today's situation is SSM. We need urgent and careful research in the history of same sex relationships in the church, into consecrated friendships and the like. The issue is not an entirely new one and there is a back history if only it can be traced. If this isn't done, more people who clamber on to high horses will be in danger of falling off.
We need to separate out things that are being confused.
First, before the reformation, marriage law was the province of the Church and not the state: canon law proclaimed exclusive jurisdiction over substantive matrimonial questions and this was not contested by the English royal courts (Ox. Hist. Laws of England vol I p 522). After the reformation, this was reversed by the Submission of the Clergy Act 1533, which is still good law. This provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of the realm. Since then, the Church is entirely subject to Parliament and only enjoys a measure of self government with the permission of Parliament. Hence, it is in one sense impossible for the law of the Church to contradict the law of the land.
Second, divorce means different things at different times. Until quite recent times, divorce was a word used for what we would now call a separation - divorce “a mensa et thoro” - which ended the right and duty of the couple to live and sleep with each other. Such a divorce did not entitle the parties to remarry. These divorces were granted by ecclesiastical courts before and after the Reformation. But another divorce was what we might now call annulment – divorce “a vinculo matrimonii” - which determined that the marriage was not valid - which freed the parties to re-marry.
This is what Henry VIII wanted from Catherine of Aragon and his grounds were kindred and affinity - which is, therefore, the paradigm case for us of a non-marriage (it would, for example, have bastardised Elizabeth I). The Deceased Wife’s Sister’s Act 1907 is on this territory - this sort of case goes to the very essence of marriage for historians and ecclesiastical lawyers and the House of Bishops did make a mistake in forgetting this.
The innovation of 1857 was that secular divorce was created which did not invalidate the marriage to the date of divorce (so, like a decree of separation) but which (a major innovation) did permit remarriage by a route other than Act of Parliament (which could end a marriage on any terms it liked, only depending on what it said - because of my first point above).
The Church in the years between 1857 and now has changed its stance on this innovation - sometimes accepting the law permitting remarriage although urging people not to invoke it, sometimes rejecting the law by forbidding clergy to conduct remarriages after divorce, then by Canon B30 apparently ignoring the law of divorce, although bound by it as the law of the land, and, most recently, allowing remarriage after divorce even to clergy, including a current serving diocesan Bishop. Again, the House of Bishops seems to have ignored the periods of difference.
Third, the great innovation is section 1(3) of the Marriage (Same Sex Couples) Act 2013, which was passed at the entreaty of the Church of England and which it cannot complain of, therefore.
This says: “(3) No Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its making provision about marriage being the union of one man with one woman.”
It is this which allows a measure of difference between the Canons and Parliament - but still only because Parliament gives permission for it, so Parliament is still supreme.
Note that even section 1(2) of the 2013 Act does NOT, in fact, make Canon B30 lawful, because it does not permit the Canon to say (as it does) (a) that marriage is “...by its nature a union permanent and lifelong, for better for worse”, which is contrary to the law which permits remarriage after divorce or (b) that marriage is, by its nature, “to the exclusion of all others on either side” - adultery is only grounds for divorce, it is not contrary to law and does not invalidate a marriage and, moreover, until quite recently a wife was not entitled to complain at law about simple adultery by her husband (the so-called “double standard”).
It seems to me that Canon B30 does not actually purport to state the law of marriage at all (that would be absurd, because of the supremacy of Parliament); rather, it states, in its own words what is “affirms, according to our Lord’s teaching” - it is teaching morality, not law. Surely, no-one can doubt that morality and the law have diverged wildly in the past, on marriage as on so much else.
The odd thing here is the way Arun Arora can't just admit the error and move on.
Whatever one thinks about the pastoral statement, the internal coherence of the document does not stand or fall on whether or not this is the first divergence between secular and canon law on marriage.
But Arora has chosen to go to the wall to defend the accuracy of a minor rhetorical flourish. This may lead some to question his honesty. It leads me to question his competence as a communications counsel.
The position is more simply stated than Peterson does, who seems to elide dates and issues in a confusing way. From the Reformation until 1857, to quote Kenneth Kirk, ' the reformed Church of England has in the main incorporated into it own usage the innovations in matrimonial affairs introduced by civil legislation since the time of Henry VIII … the general result of this process was salutary, whatever the motives of particular legislators may have been.' From the Divorce Act of 1857 to the Matrimonial Causes Act of 1937, individual clergy were permitted by law to exercise a right of conscience in refusing to perform themselves certain marriages allowed by the law but considered by some to contradict Christian teaching, but could not prevent such marriages from taking place in church. Since 1937, the clergy have been allowed to exercise a discipline over the laity that can and does prevent such marriages, and are allowed to do so by the law, given that the 1937 Act introduced grounds for divorce that no one at the time considered compatible with Christian teaching. Kirk calls this change revolutionary, the beginning of the notion that membership of the Church of England is contractual and involves accepting a discipline derived from an independent spiritual jurisdiction.
I've been away from this site for a few days so may have missed something but a report to the London Diocesan Synod this evening (Monday 24th February) on the Bishops' statement includes the lines: 'Apparently, the Guidance is only intended to cover the period while the Pilling inspired facilitated discussions take place, so as not anticipate any change in the church’s teaching. This is not stated anywhere in the letter or its appendix.'
Hmmm - if that's the case the letter has even less integrity.
It is interesting, and more than a little telling, that the Church of England's Communications Office and Media Centre has so completely ignored Linda Woodhead's article about the inconvenient truth that the House of Bishops' Statement was factually incorrect. Clearly the truth hurts and it cannot be allowed the light of day. One wonders if it was lost down a memory hole at the Ministry of Truth operating out of Church House.
Another voice on this subject from Gladstone's biographer, summarising Gladstone's position in the1857 Divorce debates: "The legal doctrine of marriage had been established against the theological doctrine by Lord Hardwicke's famous act of 1753, for that measure made the observance of certain requirements then set up by law essential to a good marriage. A further fundamental change had begun with the legalisation of civil marriage in 1836. The conception of marriage underlying such a change obviously removed it from sacrament, or anything like a sacrament, to the bleak and frigid zone of civil contract; it was antagonistic, therefore, to the whole ecclesiastical theory.…"
The assertion that this is the first time state and church have diverged on the meaning and substance of marriage is ridiculous. I can't find any authority from the 19th century who doesn't note this various divergences. This particular divergence only seems stupendous if you think the gay issue is particularly stupendous. But so did all the other divergences seem stupendous, in their day.
Incidentally of my Nineteenth century Anglo-Catholic sources would laugh like a drain to see Lord Penzance's obiter dicta on marriage erected to dogmatic status. Their writings are full of protests against Lord P and his court, and assertions that his statements on marriage had no spiritual effect.
Interested Observer's comment is the first that I've heard it suggested from any bishop or official spokesman that this is a time limited policy. Surely this would have been made clear at the time? It's just about possible that they decided to keep this quiet until the Global South meeting was over. but honestly I'm not sure I entirely believe this.
It strikes me as more likely that bishops are making things up as they go along, and have been taken aback by the strength of the negative reaction. That means the more reaction there continues to be, the less likely people are going to be sacked after 29 March.
I've been previously criticised for "Kremlinology" about what individual bishops are signing up for, but perhaps someone should make a catalogue of all the obfuscatory remarks they have made: "read the whole letter, not just the nasty bits" "don't worry, because I only want to know what you think about it" "it's only time limited"---the last is the most interesting, given that the Pilling process can't really be meaningful since its conclusion is apparently pre-judged by the St Valentine's Day statement, unless someone (perhaps Arora?---because he would speak with real authority) would say publicly that it is indeed time limited!
Oh, and the best bit of all----"we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!"
"Oh, and the best bit of all----"we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!"
Of course, that would be no change at all. Brave priests have long blessed us in our own homes and in other places outside formal worship.
That is nothing more than a continuation of the current shameful Don't Ask Don't Tell.
Lord Hardwicke's marriage act can hardly be said to replace an ecclesiastical with a legal definition of marriage when it made marriage according to the rites of the Church of England compulsory for nearly everyone for the first time. It was meant to address the problem of clandestinity, and exactly the same process was taking place in Roman Catholicism beginning with the decree Tametsi at Trent and concluding with Ne Temere in 1908. The plot of Manzoni's classic Italian novel I promessi sposi revolves around this. The introduction of civil marriage in 1836 was essentially a process to provide relief from this Anglican monopoly. Arun Arora has made a mare's nest of this issue by introducing Hardwicke in the first place, which in fairness the Bishops' statement does not mention.
That there have been changes over the centuries is beyond doubt. Bishop Alan tells us what Gladstone thought in his day - but that doesn't mean that he was right to think that. Indeed each change seemed stupendous in its own day, and we may come to see that this change is not so stupendous after all. The question is over stupendous changes and ones of detail.
It still seems to me that it is a real change. Both in terms of male-female, but also in omitting consummation and adultery (and no one much seems to be commenting on that as part of the change, for some reason). I make no judgement on whether the Church should worry about the change; I merely observe that it is happening.
In all the debate, and I've read far too much of it I suspect, I haven't been at all convinced that the bishops' statement is wrong on this detail of a divergence in definition - not details or specific points, but definition.
Lots has been said about the Church now accepting the second marriages of people with a former spouse still living. I think perhaps it's a judgement call on whether accepting divorce is a change in definition of marriage.
But, and this may be rather beside the point, I wonder whether it is correct to say that the Church's teaching on this has changed in more than just pastoral detail. Persons with a former spouse still living may be allowed to marry in church under "exceptional circumstances." This is surely a case of "the exception proves the rule" - that there are exceptions shows that the rule is normatively in force. The teaching itself is unchanged. One exception might be cases of domestic violence, where it is clear that there was never a true marriage, in the sense that the abusive partner never intended to enter into the kind of relationship which the Church teaches marriage to be. The determination of a marriage never existing is thus to be regarded as analogous to a case of annulment, even though the law calls it divorce. Church teaching has thus not changed, since marriage after annulment was always possible.
Bernard, as I commented over at Frank Cranmer's article, the bishops chose to use the phrase "the general understanding and definition of marriage" and therefore deserve to be judged against that wider phrase.
Nobody denies that same sex marriage is a significant change, but it is not the first ever significant change, which is precisely what has being claimed for it.
"The determination of a marriage never existing is thus to be regarded as analogous to a case of annulment, even though the law calls it divorce."
You're welcome to try to make that argument stick in the case of Charles Windsor and Camilla Parker-Bowles, nee Shand. In that case (Private Eye's great line "Greater love hath no man than this, that he lay down his wife for his country") the parties the marriage we are considering were willing adulterers. Although one can point to (later) infidelity by Andrew Parker-Bowles (now married to his long-term mistress) and by the late Diana Windsor, nee Spencer (allegedly), you would have to be living in a parallel universe to make out that they are not the wronged parties.
Simon, I do indeed think the bishops should be judged on the phrase they used - which is "general understanding and definition." My argument is that on these terms they are correct. There have certainly been changes and divergences in details and rules - and some of these may have been "significant." "Significant" does not seem to me the same as "definitional."
Scot Peterson's piece has an interesting line. He argues that even the Deceased Wife'e Sister Marriage Act introduces a change in definition, because diriment impediments are part of the definition of marriage. But then, in the second paragraph under the heading "Facts about the Doctrine and Law of Marriage" he says:
"Fact: The civil law of marriage has changed. Whether it was a change in the essence of marriage or its accidents, we leave to metaphysicians."
But isn't the whole debate here about the essence (definition) and accidents (detailed rules). The question being asked of the Church - "What is marriage?" - is surely asking about its essence. It seems odd that Scot argues that the essence has indeed changed, but then disavows the possibility of ruling on that himself.
For what it's worth, I'd say that diriment impediments are rules, but no part of "the general understanding and definition" - how many of the general public know, let alone understand such rules? Even if diriment impediments are part of the legal definition of marriage (and that could be disputed), they surely cannot be said to be part of the general understanding and definition. Perhaps the problem then is partly that people are using "definition" in a wide variety of ways.
Bernard, I would suggest that people are using the phrase "general understanding" in a wide variety of ways. I do not see how anyone can argue that the "general understanding" of marriage has not changed significantly over time. And further, that some of the earlier changes were not in sync with the church's understanding at that time.
Bernard, as I tried to articulate in another place, which you may not have read, or having read found unpersuasive: the "definition" contains a number of criteria that lay out that which is properly called "marriage." If any of them be lacking at the onset, the marriage is void; if any be departed from after the marriage is made, it can be terminated. The definition requires that all of these points be met and maintained. Removing any one of them, or allowing the removal even under "exceptional circumstances," marks a change in the definition. I do take your point on exceptions proving a rule, but there comes a point when the exceptions become so numerous that the rule is no longer actually in force except in a fictive way.
I also take your point on the adultery and consummation issue; but that involves the very narrow definition of "consummation" that for some reason those in the position to do so did not want to alter, as it would have entailed more changes to the law than was felt necessary or desirable, recourse to the ground of "unreasonable behavior" meeting the actual need.
Simon, it would take a lot of research to pin down the "general understanding" of marriage through the ages. My hunch is that, apart perhaps from second marriages after divorce, it hasn't changed significantly up to now, even though in details of entitlement to marry it clearly has. I don't see how it can be argued that historically in England marriage has not been understood as between a man and a woman, in principle for life (no one, surely, enters a marriage hoping for divorce), and with the assumption of exclusive sexual activity. This has certainly now changed in wider society.
I'd suggest that the the social stigma attached to divorce up until quite recently indicates that even when lawful it transgressed the general understanding of marriage. Hence, although second marriages where the spouse is still living does represent a change, I'm still not convinced that it is one of general understanding or definition. I'm genuinely willing to be persuaded.
I think my argument holds over Charles and Camilla. Regardless of who committed adultery when in their previous marriages (and I think you may be wrong in what you say), it's clear that they would not have been candidates for marriage in church (or at least not Camilla, since Diana was dead by this time). So they had Civil Wedding, followed by a service of Prayer and Dedication. There is no suggestion of what I have suggested as being analogous to annulment.
I've read so much that I can't honestly say if I've read your piece in another place. But you seem to make my case for me - if any of the items in the definition is departed from, the marriage is terminated. And if a marriage is deemed terminated then it cannot be a bar at the outset to a new one. Thus the definition of marriage is secure against allowing second marriages of divorcees. OK, it's a bit more complex than that, because I've argued that its effectively annulment (never was), rather than divorce (terminated), but that's the general drift.
As for changing the narrow definition of consummation (and therefore adultery), I think it's not just squeamishness which made lawmakers shy of including it - I suspect it would be impossible to come up with a satisfactory definition able to cover same sex marriages. That "unreasonable behaviour" covers the actual need is true for divorce, though not for annulment, is surely just a nice get-out for the lawmakers. By omitting sexual union from the definition of same sex marriages we have a pretty big and unprecedented change, it seems to me, in the definition of marriage. I do find it odd that this isn't being a bigger part of the debate at the moment.
Bernard -- as was pointed out ad nauseam in the debate prior to the legalisation of same-sex marriage: the only relevant way in which the male-female relation could contribute to the *essence* of marriage is through its presumed procreative capacity. Let's accept, for the sake of argument, your claim that "no-one ... enters a marriage hoping for divorce" (although I'm not sure that it is true). By contrast, what *is* true is that there are people who enter a marriage hoping, and indeed planning, never to have children; and in some cases, who enter it knowing that they are sterile. There aren't many people saying that the existence of heterosexual sterile marriages are in some way changing the essence or essential definition of marriage (except one or two, like Michael Nazir-Ali -- he is, at least, morally self-consistent in saying that infertile couples shouldn't marry).
So, if procreation isn't the "essential" characteristic, we are back at some kind of gender-based essentialism, which is a form of idealism demonstrably not in keeping with empirical reality. As intersex people understand better than the rest of us, gender is a spectrum of difference, not a polarity of essences.
The general understanding of marriage has certainly changed over time. For example, the domestic arrangements outlined in Genesis 29-30 (which we've been reading in Morning Prayer) do not seem to be the subject of moral condemnation. Esther's marriage - displacing the existing queen - seems to be approved. That the arrangements for Ruth's marriage to Boaz were current in Jesus' time is shown in a discussion he had with Sadducees about the resurrection.
Marriage has a longer history than the history of the Church of England.
Bernard, a lot of research has already been done, by historians and others, about the "general understanding" of marriage through the ages. So you don't have to rely on your own hunch. Our hunches are not a very good guide to history, precisely because we are so often unaware of how things that appear to us to be universal and perpetual are, actually, local and temporary.
To take just one example from your comment, there was no assumption of exclusive sexual activity in marriage until 1923, which is when, for the first time, women became entitled to cite the simple adultery of a husband as grounds for divorce. Before then, they couldn't. Husbands made vows of fidelity in the Book of Common Prayer marriage service, but there was a "general understanding" that many men could not keep those vows, and that women were not entitled to question the marriage if that were the case. Fidelity was not essential to marriage on the man's side.
To take another example, not in your comment, a key assumption of marriage across the ages and in many, many societies, including our own, was that the wife belonged to the husband and was subordinate to him. There is biblical support for this. Indeed, adultery was regarded as a crime against the husband's property, and that is why it was condemned more strongly than fornication. These concepts are completely alien to our understanding of marriage now.
Very good exchange, those of us who are indissolubilists have never found the simple repetition of the mantra "marriage is for life ....." by bishops of the CofE a credible part of their teaching.
I find Bernard Randall's arguments worthy of reflection, but tend to find Tobias persuasive.
Badman's split thinking could do with a little enlargement and publication as a TA article.
And while I agree with the view and conclusions of the principal of Staggers, this little extract from a speech some years ago delivered by Ruth Deech as she anticipated ruefully the coming of equal marriage supports the view that marriage has indeed been changed .......
"The famous legal definition of marriage is given by Lord Penzance in the case of Hyde v Hyde  LR (1P&D) 130 (HL): "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." Such is the transformation of family law and family life that not one word of this remains true. Christianity is not the only form of marriage nor the only concept accepted; marriage is not for life but only until one or other party exercises rights under divorce law; it is not to the exclusion of all others in the sense that not all adultery leads to divorce and some polygamous marriage are allowed to exist here when the family has come from a country abroad where it is recognised; only the voluntariness of the union remains and even that is under threat if cohabitation is placed under a legal regime. And now it is the one man and one woman element that is ceasing to matter."
Saint Paul seems to have become quite agitated over one diriment impediment, cf. I Cor 5:1-5. Someone should have reminded him that such impediments are merely rules capable in principle of amendment and not part of the general understanding and definition of marriage.
"the only relevant way in which the male-female relation could contribute to the *essence* of marriage is through its presumed procreative capacity."
In Genesis 1, male and female constitute the image of God in created form, and only after that is the charge to 'be fruitful and multiply' given, in the optative.
In Genesis 2, a second perspective is given. Man/Adam is given a 'helper fit for him', and the 'ishah is taken from the 'ish. There is gender difference suitable for the Adam-Eve relationship and created by God to that end.
The Church Fathers and the tradition routinely appeal to Genesis (and to Christ's own commentary on it) as grounding the male-female difference as constitutive of the creative act of God.
In Matthew 19, Jesus speaks of subsequent legal arrangements in the Law as overridden by this fundamental creational act of God, and its intention as such.
It is hard to see how gender interchangeability or irrelevance comports with the grammar of creation and the dominical reinforcement of it.
Bernard, the point of a diriment impediment is that it is definitional: that is, should one seek to enter a marriage while so impeded, the law states that no marriage exists. This seems to me a robust meaning of "definition" and as to change clearly applies in the case of the deceased wife's sister, as the impediment is incest by affinity, a notion I think "generally understood." The definition of incest was changed, no longer to include this particular category. This changed the definition of marriage, allowing "marriages" to take place that formerly were not only forbidden, but technically impossible. The change to allow same-sex couples is of a similar categorical sort.
There has been a good bit of discussion about the lack of an adultery clause for same-sex divorces. Two points I think crucial:
1) if the topic is the constitution of marriage, there is really no need to talk about causes of divorce, which only forms a part of "marriage law" with an eye to ending a marriage. Marriage is not constituted by that which ends it.
2) this is a local and perhaps peculiar English concern, apparently based on the notion that a same-sex couple cannot really "have sexual intercourse." (the consummation issue) However, for males at least, the proscription in Leviticus is couched (literally) in those terms: Do not lay the layings of a woman with a man; so the law could have been framed to take account of this aspect, but prudence and the position of women likely prevented making windows into folks' boudoirs. (The rabbis would agree that two women cannot have "sexual intercourse" given their understanding of what constituted "sex.")
cseitz: Are intersex people made in the image of God?
With respect, can you give a full report on what you mean by 'intersex people'?
Historic Anglicanism has never seen marriage as a sacrament.The belief amongst Anglo-Catholics dates from the nineteenth century and is an import from Roman Catholicism.
However Anglican canon law as reconstituted in 1604 forbids divorce and re-marriage. This was only over turned in 2001, although TEC allowed it from 1801.
Church tradition and Jesus himself may appeal to Genesis 1 and 2, but they're not historical, are they, and they do not describe human sexuality remotely as well as modern science (or indeed lived experience), do they?
Glad at any rate that you see that God must be at least half female.
I wonder if Bernard Randall has ever heard of the phrase 'de facto', when applied to a relationship between a man and a woman, that actually falls short of what the church might consider to be a marriage, but which has all the rights of marriage.
Many couples in the world are now not entering into a legal marriage situation, and yet live together monogamously ans raise their children together. How would that fit in with what you call the doctrine of marriage? Would it be outside of that description, simply because of no Church or civil involvement?
Whether we like it or not, many couples now choose not to legally register a marriage, but are living in a de facto relationship. Where does that fit into the common understanding of marriage?
@Bernard: With respect, I think your argument is circular. If I understand correctly (and I may not), you approximately defend the idea that the change of marriage to admit same-sex couples is an "essential" and unprecedented divergence from the ecclesiastical definition, but then assent to a perfect example of where another divergence is already extant (i.e., the church would not (or, for the sake of argument, would not) marry Charles and Camilla, but the State would). This is precisely because of an essential difference in state and ecclesiastical understandings of the relevance of adultery in dissolving previous, and forming new, marriages. Charles and Camilla's marriage is no less of a legal marriage for the church's doctrinal difference from the civil law.
Lots of comments to catch up with – I’ll do my best. Sorry if I miss anything out. I think this is a good debate we’re having.
Andrew (Tuesday pm) – I’m quite happy with “presumed procreative capacity” being the reason for male-female being part of the definition of marriage. Up until quite recently I think that was generally understood to be the norm. That there are some who, because of age, are not likely to have children doesn’t invalidate the principle – the Bible gives plenty of examples of older people being blessed with children, so hope springs eternal. Moreover, we don’t deny Communion to people with dementia because they cannot discern the Body of Christ – we impute to them the capacity they once had (Thomas Aquinas). We can make an analogy to marriage – the pastoral exceptions don’t change the rule.
I would, in fact, agree with Michael Nazir-Ali on this at least, that entering into (legal) marriage with the hope and plan of not having children seems suspiciously like a decision not to enter into (Christian) marriage properly. I would decline to conduct the wedding of such persons. Cases of this are rare, I would think, certainly historically. So again, I’m not sure they can be used to challenge the general definition of marriage.
In any case, if the reasoning behind the definition (presumption of procreative capacity) is challenged, that doesn’t, I think, ipso facto change the definition – it merely gives us grounds for proposing a changed definition. And this is where cseitz’s use of Genesis, and NT/Patristic appeals to it, comes in – whether we accept any particular reading of the texts they give enough pre-critical support for male-female to part of the general definition up to the last few years. Remember the issue is not whether the definition was right, but whether it has changed.
badman (Tues pm)
I’m sure a lot of research has been done – I wasn’t meaning to imply it hasn’t, though I wonder how much of it has been into popular “general understanding” rather than official shifts in the law: there may be differences. I don't know enough about this, I'm afraid.
I take your point about mutual fidelity seeing a change in 1923, but as you say, the vows of fidelity were there in the BCP service, so I’d suggest that his was a change in the enforcement of the definition, rather than a change in the definition itself. It would be informative if any of the debates in 1923 suggested something different.
Your point about wife-as-property is a good one (being property and being subordinate are not the same thing). There are certainly grounds for seeing this as a part of the “general understanding and definition” in England over most of the last five centuries, and it certainly has changed. However, I’m not sure that the relative legal status of the parties is part of the definition of marriage – it’s not in the Biblical texts generally cited, nor is it present in the BCP. It’s a hangover from Roman law, perhaps, rather than part of the definition. Is there evidence for people claiming it was part of the definition when this changed? If there is, I’d be very easily persuaded on this point.
Tobias (Tues eve)
a diriment impediment is indeed definitional in terms of what the law defines as a valid marriage – but that’s surely not the same thing as the general definition. The definition may include that there are diriment impediments (though I suggest even that is introducing too much detail for a general definition) – I don’t think the definition can include precisely what those impediments are. That a marriage is not incestuous may be part of the definition, precisely what constitutes incest is not.
And so, as you say, surely correctly, the Deceased Wife’s Sister Marriage Act changed the definition of incest, to remove DWS from the forbidden list. Incest changed, not marriage. It seems to me you’ve put that line of argument to bed.
On adultery, you are correct under (1) that “Marriage is not constituted by that which ends it,” and yet what constitutes marriage must be the basis on which ending it is predicated – there must be a relation between the nature of marriage and the grounds for divorce. The question of consummation and adultery relate to the part of the definition which talks of [sexual] union and its exclusivity (whether that’s a peculiar English concern or not). I would cautiously say that whilst same sex couples can have sexual intercourse (i.e. sex understood its wider sense), they can’t have sexual “union” (i.e. sex in the narrower sense, which goes with the old definition of marriage) – and hence it was properly deemed fitting to drop that element in the changed definition.
In most of the references with which I am familiar, the emphasis given to "male and female" -- including Jesus, the Dead Sea Scrolls (CD), and the Fathers (e.g., Tertullian, who goes on about this at great length) -- is in support of the notion that the singularity of the original couple ("a male and a female") necessitates monogamy. Two -- not three or four -- become one.
in England we have the notion of common law marriage (i.e. long-term co-habitation), but it is emphatically not something “which has all the rights of marriage.” The law may be different elsewhere, but co-habitees do not, for example have rights over next of kin status when a partner is hospitalized, nor rights to inherit a family home own by only one partner. This was behind the drive to create civil partnerships for same sex couples, who could not attain these rights by marrying. That things are/have been different in other countries and cultures does not see to affect the validity or otherwise of what the bishops’ statement said.
I think that some kind of official recognition probably is part of the definition of marriage, at least when we’re talking about the Church of England. That said, if anything, the Church’s definition is more lax than the state’s, since theologically a marriage requires only exchange of vows and consummation – a priest is only a witness to marriage, not the minister of it (in Western tradition). The presence of witnesses to the vows is deemed necessary precisely so that someone can testify to an official enquiry that the marriage truly exists, and has, for example, created inheritance rights.
None of this in itself implies any kind of judgement on those who choose not to avail themselves of the legal, social and emotional advantages of marriage.
Andrew (Wed am)
my argument is that whilst same sex marriage has changed the definition (union, one man one woman), the second marriage of divorcees while it changes some things does not change the definition.
The key point, as I take it, is that marriage in the lifetime of a former spouse was regarded as adultery, and adultery contravenes the requirement for exclusivity. My argument, and I accept it may come down to a judgement call, is that by allowing the second marriage what has changed is not the definition of marriage but that of adultery (analogously to the Deceased Wife's Sister At changing the definition of incest rater than marriage). What was once regarded as adultery is not any longer.
Another strand to my feeling on this is that although the general definition of marriage contains the ideal of being life-long, it has always been accepted that divorce is a theoretical possibility - even though for much of English history it was well-night impossible in practice. Thus changes in the area of divorce and second marriage are more of the nature of tinkering with the detailed rules than changing the core definition.
So, for the time being, I'll continue to maintain that the bishops were not wrong, or at the very least their view is a reasonable interpretation of the facts.
Oh, and the best bit of all----"we will come and celebrate with you in your own home as long as you keep your dirty business out of our churches!"
I sense a whole new business opportunity for quick-thinking entrepreneurs -- the revival of priest holes, either completely installed for you or the supply of DIY materials.
"Church tradition and Jesus himself may appeal to Genesis 1 and 2, but they're not historical, are they, and they do not describe human sexuality remotely as well as modern science (or indeed lived experience), do they?"
One can see from this quote why it is very unlikely that anyone will agree o\in the present age's wrestling with sexuality.
Genesis 1-3 were not held to be true by Jesus or the Church because they were historical in some post-Baconian sense. But leaving that aside for a moment, if 'modern science' is to be the judge of what Christians now believe, it will a) have to take on a burden it probably cannot bear, and b) will mean that scripture is pretty much dispensable altogether as a Christian authority.
As noted before, here will be the new fault line for progressive religion. Those who see the Bible as wrong and out of date, and those who believe it can be retrieved when one runs the proper Geiger counter over it.
I may misunderstand you completely.
If the deceased wife's sister act only changes the definition of incest, not that of marriage, and if allowing second marriages after divorce only changes the definition of adultery, not that of marriage, then why does the same sex marriage legislation not only change the definition of the gender of the participants but not the definition of marriage?
Either all these changes change something about the definition of marriage or none of them does.
Randall, I'll offer two last brief observations.
1) you seem to be eliding "definition" and "general understanding" which I think deserve to be treated as two distinct though related things. Surely the "defintion" of what is and isn't a marriage is a rather detailed legal notion and must include things such as the table of consanguinity and affinity (why else print it in every prayer book! I recall C. S. Lewis' bemusement at childhood review of who he couldn't marry, when sermons waxed boring.) Such matters as consent and capacity also enter into the definition, and they are spelled out in the rite. Any "just cause" that would prevent a marriage must be considered as part of the definition, if not the "general understanding."
2) The issue isn't really about whether the "definition" used by the church has changed, but whether the definition used by the church differs from that used by the state. Clearly at least some, given the citations, felt that these changes had led to a "discord of law" in earlier instances, and that is the point of Linda's paper. The Same-Sex Marriage act is not the first time there has been a significant discordance between civil and church law, and at least some saw it (in those earlier times) as substantial and, if you will, "definitional." There would exist couples who were married under the law of the land whom the church would consider to be living in a state of sin. (Linda Woodhead's 1907 citation from Davidson refers to a conflict with "defined law.")
What a relief that 'the Bible' 'can be retrieved' 'when one runs the proper Geiger counter over it.'
So it is not marriage alone that has changed before our very eyes.
cseitz - it is all very well examining the narratives of humanity before the fall, but that is not the current condition of the world. In the resurrection, as Jesus says "there is no marrying or giving in marriage. You are quite wrong." Since you quoted Genesis, where do you see Genesis 29-30 in this? I don't see the Bible as wrong, or out of date, but there does seem to be more in it, and more in the Bible compatible with God's plans, than is usually meant by "Biblical" or "Christian" marriage.
"Genesis 1-3 were not held to be true by Jesus or the Church because they were historical in some post-Baconian sense. But leaving that aside for a moment, if 'modern science' is to be the judge of what Christians now believe, it will a) have to take on a burden it probably cannot bear, and b) will mean that scripture is pretty much dispensable altogether as a Christian authority.
"As noted before, here will be the new fault line for progressive religion. Those who see the Bible as wrong and out of date, and those who believe it can be retrieved when one runs the proper Geiger counter over it."
This seems very close to the thinking by those Christian fundamentalists who reject evolution and a universe based on a Big Bang occurring 13.8 billion years ago in favor of a Six-Day creation that made then everything as it exists now.
Surely, that's not where the Anglican Communion Institute comes down on these issues, is it?
It's the usual crude, ignorant, stupid, frankly offensive over-polarisation. Nowhere do I imply that 'modern science' is the SOLE arbiter of religious belief. I do of course strenuously maintain that what it says about human sexuality - and particularly about human homosexuality - should be taken into account.
If Jesus appeals to Genesis as a corrective re God's protological purposes, and the church followed both him and that logic, that is more probative and explains the latter's teaching through the ages.
See Matthew on this basic logic.
it seems to me that the sex of the persons getting married (one male, one female) is part of the definition. It's always been part of the marriage service in England, it is clear in the teaching of Jesus (e.g. Matt 19, wit the reference back to Genesis).
Be that as it may, I think your comparison is false: DWS changes definition of incest not marriage; second marriage changes adultery not marriage; the correct analogy would be came sex marriage changes the definiition of sex not marriage.
I don't think anyone is arguing that same sex marriage is not a change. The claim, surely, is rather that the Church has coped with other changes in definition, and so it ought to take this one in its stride.
if I'm eliding "general understanding" and "definition" in an unclear way, I apologize. What I mean to do is take "general" as covering both "understanding" and "definition" in the bishops' statement - that seems to me the natural way of reading it.
I thought I had distinguished "general definition" from "legal definition" in what I've written. The two are certainly distinct but related things (hence the general definition has up to now been "enshrined in law" (even if hedged about by various extra details). The can be no denying that the legal definition has changed in various ways over the years. There's no denying that on detailed points there has been a "discord of law." My case is that that wasn't the kind of definition the bishops were meaning - they meant the general [understanding and] definition.
We've seen that in the past people talked about the changes as being highly significant, but:
1) I don't see them using the language of general definition, or anything very much like it, in the way that I (and I think the bishops) have used it - they talk of legal divergences; and
2) Even if they did, my argument has been that with the benefit of hindsight they would have been mistaken, and that this is the first time in fact rather than perception that there has been such a definitional change. This of course leaves me open to being shown wrong about this being a definitional change (either now or in hindsight). I'm happy enough with my position to think that's unlikely, but who knows?
What hindsight will tell us, and presumably the facilitated discussions are part of gaining better sight, is whether the bishops are right to make a big deal out of this change. My tentative answer would be that they're not, but that this issue is made hugely more complicated by the nature of establishment than it might otherwise have been.
Tobias said : "In most of the references with which I am familiar, the emphasis given to "male and female" -- including Jesus, the Dead Sea Scrolls (CD), and the Fathers (e.g., Tertullian, who goes on about this at great length) -- is in support of the notion that the singularity of the original couple ("a male and a female") necessitates monogamy. Two -- not three or four -- become one."
As I understand it,at the time of Jesus monagamy was a Roman and Greek custom (though with relatively easy divorce). As Greek and Roman influence spread over their empires, the trend towards monogamy spread too (like Coke and Mcdonalds in the wake of the spread of American influence over the world). People in polygamous societies, like ancient Palestine, who wanted to be seen as modern, sophisticated and respectable would adopt monagamy. As the Christian church spread it too wanted to be accepted by the dominant Graeco/Roman culture (especially as many of its early converts were already members of that culture). Gradually monogamy became the Christian norm at least in the Roman heartlands, but this was an innovation for many who were polygamous, and who, quite rightly, saw their polygamy as a perfectly acceptable Biblical pattern. It's no surprise, then, to find the Church Fathers like Tertullian arguing for it - they would need to make the case for this Roman innovation to those who had been brought up in polygamous Jewish and other Middle Eastern societies. (Babylonian Jews were polygamous well into the Middle Ages, and there is a live discussion among some Jewish groups in Israel now about the re-adoption of polygamy.)
We have often got so carried away with the idea that early Christianity was counter-cultural that we ignore the evidence of its attempts to be accepted as respectable in the dominant culture of its time - perhaps if Christianity hadn't been eventually made the official religion of Rome monogamy would never have become the norm for us. That attempt to conform is there, though, in this move towards monogamy, which those who wrote the Old Testament, and much of the New, would have thought was very strange.
"I don't think anyone is arguing that same sex marriage is not a change. The claim, surely, is rather that the Church has coped with other changes in definition, and so it ought to take this one in its stride."
The claim is that the Bishops' statement is wrong and that the church has, indeed, previously been at odds with the state's definition and the general understanding of marriage.
Are you now saying that the church did previously change the definition after all? If so, the only question is whether that happened at the same time as the state's change in the definition or whether there was, indeed, a period where the two were at odds.
Anne, I don't want to discount the fact that Graeco-Roman ideals of monogamy did not play their part in forming Christian thinking. However, what I'm noting is that pressure towards monogamy was alse lively within several strands of Judaism in the period. The Dead Sea Scrolls explicitly cite Genesis 1 in support of a man "being married only once in a lifetime." (There may be an echo of this in the Pastoral Epistles' demand of the same for bishops and deacons.) The Patristic era had an abstemious view towards marriage over all, and held monogamy to include remaining unmarried in widowhood. Tertullian is typically strict along that line, and counsels his wife not to marry should he predecease her. Early councils legislated firmly on this, forbidding second marriages to clergy whose wife had died.
So this is not just a matter of conformity to Roman law, though that played a part, but an independent view that idealized virginity, and if one could not maintain that, at the very least monogamy -- for life. And my point is that Genesis 1 was used to support that argument. I am not aware of any use of Gen 1 to support a notion that "the divine image is constituted" by a union of male and female until the last century.
my claim is that the "general understanding and definition" has not previously changed. It is thus mistaken, I contend, to take a position which says, in effect, "the Church has coped with changes of definition in the past, so it should accept this one without fuss."
What have changed are details to do with how the general definition is applied in specific practice, i.e. the legal parameters/definition of marriage. I am arguing against the idea that the Church has previously accepted changes in the general definition.
Tobias, the pressure within Judaism may have also been influenced by Graeco-Roman norms, though, even if many people weren't aware of how or why that was happening.
The British gradually became Romano-British - ethnically the same, but adopting Roman customs until they thought they were their own, and just the obvious way to live. The English gradually assimilated Norman French words after the Norman conquest into their language and now we are completely unaware most of the time that we are speaking a sort of Franglais.
The point I was trying to make was that the idea that monogamy was a Christian ideal, intrinsic to Christian faith from the outset, in the mind of Jesus as the only proper way to view marriage is highly unlikely. (Surely Jesus would have had far more to say about it in his society where polygamy was still common). That is the assumption though, when people talk about the Biblical model of marriage, God's ideal, as being "one man and one woman". It may be that monogamy is a very good idea - my husband is dead set against the idea of taking another wife or two and maybe a concubine as well...- but it seems important to me if we are discussing what the Bible says about marriage that we are intellectually honest about the roots of our assumptions about what that looks like.
I think there is another, very interesting discussion to be had about how the emphasis on virginity grew (certainly not a Roman ideal) and also how the Christian prohibition against divorce (relatively easy in the Roman system) led to the difficulty of maintaining life-long marriages. (Monogamy as the Romans practiced it was much easier since divorce was accepted. In polygamous marriages the man at least could take another wife if the first one didn't come up to his expectations. I don't suppose either system was much fun if you were a woman...
The Church Fathers may not have thought they were upholding a Roman tradition, or they may have been trying to "baptise" a Roman tradition by trying to give Biblical justification to it, but the fact was that it was still an innovation, and not the Biblical pattern that many people now assume in the course of the discussion on gay marriage.
thank you for your answer.
Could you please tell me what the eternal unchanged church definition of marriage is?
Bernard, it is factually unsustainable to contend that "the general definition and understanding of marriage has not previously changed".
We have given you a number of examples of these changes - changes both of general definition and general understanding.
Others appear in the literature which you frankly admit you are not familiar with. This literature is both legal - see, for example, the President of the Family Division's review in 2013 at http://www.iclr.co.uk/assets/media/iclr-annual-lecture-transcript-2013.pdf - and historical - an introduction you might find useful would be Professor Stone's "The Family Sex and Marriage in England, 1500-1800".
Your argument seems to be that, if you discount the changes in definition and in general understanding which have taken place, there haven't been any. This is not very persuasive.
I don't think examples have been given of changes in general definition in these discussions - except perhaps for further marriages after divorce, and I've given my reasons for thinking that is a redefinition of adultery rather than of marriage itself, if it is, indeed, redefining anything a the general level. The point has been made elsewhere that this change in Church practice didn't require a change in Canon law - which points to there not been a general definitional change.
Thank you for the link to Sir James Munby's very interesting piece. For the most part it is concerned with changing legal details, and so it's not clear how out of step with Church teaching any of it has been. based on my knowledge, It seems to me that, for example on wife as husband's property and contraception, Church teaching has been of a pace with societal and legal changes (sometimes ahead, sometimes behind). None of these seem to me to be part of the general definition (the property thing comes closest). It's all detailed application.
What struck me most was his use of Sir William Scott's definition of marriage as "a contract according to the law of nature, antecedent to civil institution" (p5). What Sir James relegates to a footnote is that this definition includes the idea marriage happens "wherever two persons of different sexes engage, by mutual contracts, to live together." Arguing for a more minimal definition than Sir James Wilde's Christendom model, he nevertheless finds one where being of different sexes is necessary. If we can't agree what else is/has been part of the definition, that point at least has always stood, up until now. The Bishops' point still stands, I think.