Same-sex Marriage and the Church of England
The following explanatory note may be helpful in the context of
yesterday's Government statement and subsequent press coverage.
In her statement to the House of Commons on 11th
December on the Government's proposals for Equal Marriage, the
Secretary of State said:
"because the Church of England and Wales have explicitly
stated that they do not wish to conduct same-sex marriages
the legislation will explicitly state that it would be
illegal for the Churches of England and Wales to marry
same-sex couples. Mr Speaker, this provision recognises and
protects the unique and Established nature of these churches. The
church's canon law will also continue to ban the marriage
of same-sex couples. Therefore, even if these institutions
wanted to conduct same sex marriage, it would require a change to
primary legislation at a later date and a change to canon law.
Additional protection that cannot be breached."
Press and political commentary on this has given rise to the
impression that extra safeguards have been put in place for the
Church of England, which give legal protection above and beyond
that for other denominations and faiths. Some have said that this
amounts to Government deciding to give preferential treatment to
the Church of England on the question of legal protection for
religious organisations not wishing to perform same-sex marriages.
Others have questioned why the Government should explicitly write
in to primary legislation that it would be "illegal" for the Church
of England to perform same sex marriages when it will not be so for
other denominations and faiths, taking this to mean that it places
additional legislative barriers in the way of the Church of England
in the unlikely event that it should wish to change its current
position.
Such questions are understandable, but are based on a
misunderstanding of the Church of England's established status and
its relationship with Parliament on matters relating to Canon
Law.
This is
not a question of the Government and Parliament imposing a
prohibition or "ban" on what the Church of England can do. It is
instead the Government responding to the Church's wish to see the
status quo for the Church of England preserved and accepting, as
for other churches and faiths (though the legal framework is
different for them), that it is not for the Government and
Parliament to determine matters of doctrine.
As explained in the Church of England's
submission to the Government's consultation in June 2012 (here: http://tinyurl.com/bsn6dxt ),
the Canons of the Church of England define marriage, in accordance
with Christ's teaching and the doctrine of the Church, as being
between a man and a woman. Because the Canon Law of the
Church of England is also part of the public law of the land and
cannot be in conflict with statute law, it is important that any
legislation for same-sex marriage makes it clear that it does not
apply to marriage according to the rites of the Church of England.
The legislative drafting of what is needed for the Church of
England is necessarily unique because of that; and because Church
of England clergy normally have a legal duty to marry people by
virtue of their office. The Government, in accepting that the legal
effect of the Canons of the Church of England need to be preserved
(in line with its assertions about protection of religious
liberty), have committed to drafting legislation on same sex
marriage accordingly.
The effect of what the Government
has proposed is to leave decisions about the doctrine and practice
of the Church of England with the Church of England. Any
change to the Church of England's doctrine and practice of marriage
would require legislation by the Church's General Synod. In
addition to an Amending Canon that redefined the nature of
marriage such a legislative package would also involve
the General Synod passing a Measure (the General Synod's equivalent
of an Act of Parliament) that altered both the statute law
concerning marriage according to the rites Church of England and
the marriage service in the Book of Common Prayer.
All Synod Measures require parliamentary consent. The usual
process of parliamentary scrutiny for legislation submitted by
the Church is that it goes first to the Ecclesiastical Committee
and then has a single debate in each House before the Measure goes
for Royal Assent. As the General Synod's devolved
legislative powers includes the ability to amend Westminster
legislation it would not require separate,
additional legislation on the part of Parliament to enact any
change to the Church's practice on marriage. Talk of
additional 'barriers to opt-in' for the Church of England following
the Secretary of State's announcement is therefore misplaced.
For Parliament to give the Church of England an opt-in to
conduct same sex marriages that it hasn't sought would be
unnecessary, of doubtful constitutional propriety and
introduce wholly avoidable confusion.
In addition, as the Bishop of Leicester said in the House of
Lords on 11th December in response to the Government
statement "our concern here is not primarily for religious
conscience or the protection of the Church of England's position,
but rather a more fundamental concern for stable communities".
The arguments set out in the Church of England's submission in June
to the Government's consultation (here: http://tinyurl.com/bsn6dxt)
spell out those concerns in detail.