A quick chronology
On 11 December, the government announced its response to the consultation on same-sex marriage that took place from 15 March through 14 June 2012. The initial consultation concerned how (not whether) to proceed with same-sex civil marriage. In its response to the initial consultation, the Church of England failed to respond to the question that the government had asked. It took the position that all marriage (civil or religious) was the same and that same-sex marriage should not be offered by the state. The church failed entirely to say how it could be offered, arguing that same-sex marriage should not be offered at all, even by the government in non-religious ceremonies. Unfortunately, the bishops of the Church in Wales said, in their response to the consultation, ‘The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages.’
In the course of the consultation, certain religious groups argued that they should be allowed to perform religious same-sex weddings, based on their right to religious freedom. In response to those demands, the government response included provision for same-sex religious marriage, including what has become known as the ‘quadruple lock’:
- Ensuring that no religious organization would be required to perform same-sex weddings;
- Allowing religious organizations to opt in and perform same-sex weddings;
- Amending the Equality Act 2010 to protect religious organizations and ministers from being sued for refusing to perform same-sex weddings; and
- Denying the Church of England and the Church in Wales power to opt in on the same basis as other organizations without additional primary legislation.
The debate about the fourth lock has now deteriorated into a he-said/she-said factual dispute in the court of public opinion. However, given the recent decision on women bishops and the Church of England’s continuing claims that it has consistently supported same-sex civil partnerships, which have been falisified here, the credibility of the Church of England is at a low ebb, and its testimony carries little weight.
Why this is not so bad for the Church of England
A change in internal Church policy involving a change in the canons, which currently provide ‘[M]arriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman …’, would likely require a change in statute law, which requires a church measure. Since 1919, the church has enjoyed the privilege of being able to pass primary legislation, subject only to parliamentary ratification in a single vote, which cannot amend the legislation. It seems likely that exercising the ‘opt-in’ option under the proposed legislation on same-sex marriage would have involved that extra step for the established church. Thus, as the church says in its original statement, the fourth lock simply preserves the status quo.
At the same time, if the doctrine of parliamentary sovereignty means anything at all, it means, ‘What the Queen in Parliament enacts is law.’ That principle, combined with its companion doctrine of implied repeal, means that the government of the day cannot get it wrong. If a law passed by the House of Commons is inconsistent with a previous law, then the previous law is repealed, except in unusual cases like the European Communities Act 1972 or the Human Rights Act 1998. Had the government simply permitted religious same-sex marriage with only the first and second locks, the courts would have had to sort out the consequences. That means the third lock is important, because it prevents heavy handed (but well intentioned and progressive) judges from forcing clergy to marry same-sex couples. Viewed in this light, however, the fourth lock is entirely unnecessary.
At bottom, however, the proposals do what they say they do and what the Church of England said it needed. They preserve the status quo, and if a sufficient number of members of General Synod decide that it is better to permit same-sex marriage, then their proposal will undoubtedly be ratified by the House of Commons without much debate. Little or no harm done.
Why this is really bad for the Church in Wales
Unlike the Church of England, the Church in Wales does not have the power to pass primary legislation in its Governing Body, as the Church of England can in its General Synod. The means through which Wales’ marriage law was retained after disestablishment is described in an excellent article by Nicholas Roberts, published last year. The retention of the civil law of marriage for the Church in Wales was not a product of the Church in Wales Act 1914, which designated Church in Wales churches as places of worship, like other non-established churches, where marriages could be solemnized and designated its clergy as persons who could be authorised to solemnize them. Rather, it was a product of the Church in Wales (Temporalities) Act 1919, which restored a number of privileges (and a lot of money) to the church.
The 1919 bill was highly politicized, and its history was deliberately kept obscure. The Home Secretary, Edward Shortt (a Liberal) was opposed to being too generous to the church, and he resisted the church’s successful efforts for re-endowment. The 1919 bill was drafted quickly over the weekend of 25–27 July 1919, just before the end of the parliamentary session and was approved while most Welsh Liberals were away at the Eisteddfod. Shortt’s obscurity about its marriage provisions, referred to in Roberts’ article, was understandable. Bishop Alfred Edwards of St Asaph wrote that the drafter of the bill was ‘a genius at wrapping up and concealing our gems’. The restoration of the civil marriage laws may have been one of those gems. Shortt was probably as unhappy with it as he was with the financial parts of the bill.
But it’s come back to haunt the church. By arguing that its position was ‘almost identical’ to that of the Church of England, the Welsh Church implicitly sought the same legal protection granted to the English church, despite the fact that the Welsh Church is disestablished. However, although the pre-disestablishment marriage law has been retained for the Welsh Church, including the putative right to be married in one’s parish church, that right is abrogated by the third lock, which grants a conscience clause (and immunity from suit) to clergy who refuse to perform same-sex marriages. Lock 4 imposes an unnecessary burden on the Welsh Church, and it should be removed as far as it includes that church. In this case, the doctrine of implied repeal should be allowed to do the work it normally does.
Why this should not be an opportunity for the Labour Party
Labour overreaches itself when it refers to these provisions in the bill as an omnishambles; the government could not have done much better while trying to modify complex marriage laws, to balance equality laws and religious freedom and at the same time to reconcile irreconcilable, opposing interests. To claim otherwise is opportunistic. It seems clear that the constitutional, political and legal complexities of the law of marriage in Wales surprised the government. But good, sensible argument, not a generalized attack on the government’s competence is needed. And extending the omnishambles argument to the Church of England is entirely unfair given that church’s general, public refusal to cooperate with the consultation in the first place. The Church in Wales may have received a temporary scare, which will make it think twice in the future about trying to ride on the coat-tails of its established equivalent in the east. The Church of England may have received its just deserts for being obstinate. But the government should not be the target of general criticism for an honest mistake on an obscure point of law, which was unforeseeable when the Church in Wales did not address this point, or any other, in its response to the consultation.
The problems in this bill can easily be corrected. Labour shouldn’t be diverted into a general attack, which may make it look like a dog in the manger, disappointed not to have been able to introduce its own amendments to allow religious same-sex marriage. Such an amendment surely would have run afoul of even more niceties in the religious law of marriage in the UK than the government’s carefully considered bill has done. This is a cross-party question of policy that addresses a felt need by LGBT people and religious freedom for minorities like Quakers, Unitarians and Liberal Jews, as well as for those, like the Roman Catholic Church and the Church of England, who disagree. It should not be turned into a political football.
 Letter from Edwards to Frank Morgan dated 28 July 1919, National Archives of Wales, RB/Admin/Corr 8.
- Britain to ban same-sex marriages by Church of England (usatoday.com)
- Government to extend marriage to same-sex couples but churches will not be forced to conduct gay weddings (independent.co.uk)
- Parliament bars Church of England from hosting gay weddings – Articles (religionnews.com)
- Wales News: Gay marriages: Church in Wales faces ban on performing gay ceremonies (walesonline.co.uk)
- Churches of England, Wales not to offer same-sex marriages (panarmenian.net)
On Tuesday 12 June, two days before the end of the consultation by the Government Equalities Office (GEO) on same-sex civil marriage, the Church of England submitted an unsigned response. The response contains a number of arguments, which we feel are deeply flawed or simply inaccurate:
- Same-sex civil marriage violates the fundamental principle of marriage: complementarity, which arises from the difference between the sexes. If this argument does not depend upon the importance of procreation, and it cannot, then the argument is circular.
- Legislation on civil marriage will impact religious marriage because the institution of marriage is one and the same for both. But one of the foremost Christian apologists in the Church of England has argued that they should be different, and the Church of England has fought successfully to maintain the distinction between the two.
- The Church of England’s bishops have supported civil partnership policy in the UK. In fact, they have not.
- European law may force churches to perform same-sex marriages if the government does so.In fact, the authority that the church relies on leads to exactly the opposite conclusion.
- Nothing is gained by giving same-sex partners the option of a civil marriage when they already have civil partnership. This argument is wrong, because (a) important benefits obtain in marriage, which do not in civil partnerships; and (b) separate is not equal.
Seven Oxford academics submitted a reply to the Church of England’s position, which is available here. Iain McLean and I also published a blog summary of the reply, which is here. And I have recently responded to comments made on the blog.
In an interview on the Andrew Marr Show on 11 March, the Archbishop of York, John Sentamu, got into a muddle. First, in response to a question about the government’s consultation on same-sex marriage, he argued that the government couldn’t permit civil marriage between same-sex couples, because the definition of marriage was in the 1662 Book of Common Prayer of the Church of England (‘BCP’) and in ‘Article 30 of the Church of England’; second, he argued that both were Acts of Parliament but that only the General Synod of the church could change them. He then said that the government should not press ahead with its promise to introduce civil marriage for same-sex partners. The confusion here needs to be untangled, because the Church of England will undoubtedly be trying out as many arguments as it can devise to oppose same-sex marriage (SSM). It will be important to respond to each one carefully in turn.
First, the definition of marriage is not in the Book of Common Prayer, nor is it in Canon B 30 of the canons of the Church of England, which the archbishop mistakenly referred to as Article 30. The BCP contains a definition of marriage in the preamble to the marriage service:
[A]n honourable estate, instituted of God in the time of man’s innocency, signifying unto us the mystical union n that is betwixt Christ and his Church: which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be enterprized, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men’s carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which Matrimony was ordained.
First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.
Secondly, it was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ’s body.
Thirdly, it was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity.
While beautiful, this is not a legal definition of marriage; it is the church’s definition of marriage (and that of a rather outdated theology, at that). The legal definition of marriage for England and Wales, which tells people (whether Christian or not) when a marriage has taken place, is contained in the Marriage Act 1949. There, marriage is celebrated (i) according to the rites of the Church of England, by banns, a common license or a superintendent registrar’s certificate or (ii) under a superintendent registrar’s certificate, either in a registered building (a non-Church of England Church, recently expanded to include registered secular premises such as hotels) or in a registry office for civil marriages. Any definition that the Church of England may have for marriage applies only to the first of these.What is more, the words ‘man’ and ‘woman’ occur only in the description of prohibited degrees of relationship in the 1949 statute; nowhere does the statute define marriage as being between ‘one man’ and ‘one woman’. Interestingly, this passage from the BCP also does not contain a reference to ‘one man’ or ‘one woman’; and much of it can easily be interpreted to apply to same sex couples, who are just as capable of entering into relationships advisedly, avoiding sin, offering mutual support, and bringing up children ‘in the fear and nurture of the Lord and to praise his holy Name’ as any others.
Canon B 30 (promulgated in 1969) is much shorter:
[M]arriage is in its nature a union permanent and lifelong, for better or for worse, till death do them part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.
The canon echoes the purposes from the marriage service (procreation, monogamy and mutual support), but it goes further, too. It includes a limitation to one man and one woman, which had not been in the BCP definition, and it includes the criteria ‘permanent and lifelong, for better or for worse, till death do them part’. Inclusion of the second set of requirements was a late-nineteen-sixties pot-shot at divorce. However, the liberalization of divorce laws has since forced the church to temporize. In 2002 the church’s general synod passed a resolution, which acknowledged that ‘regrettably’ some marriages fail and that in ‘exceptional circumstances’ a divorced person may be married in church during the life of a former spouse. So now clergy may marry divorced persons (but don’t have to, just as they don’t have to marry post-operative transsexuals or men who wish to marry their deceased wife’s sister). The canon is certainly susceptible to the same reinterpretation where same-sex marriages are concerned.What force do these two provisions have? Are they binding on the government?Parliament can make or unmake any law whatever, and no institution in Britain has the power to override its policies. Unlike the United States, which has a supreme court that exercises strong judicial oversight, the UK lacks a formal, set of checks and balances. At bottom, the archbishop is claiming status for the Church of England as a check on Parliament. It is not. Since 1919 it has been customary (in British terms, a ‘constitutional convention’) that matters dealing with the church be initiated by the church and not in the civil legislature. That custom is not a fundamental, core principle of British democracy: it can be changed, like any other act of parliament.The pre-eminent expert on ecclesiastical law in this country, Mark Hill, writes, ‘[T]he inextricable link between Church and State permits the State to legislate for the Church and its religious affairs, either directly or by implication. Examples of this in more recent times include the Marriage Act 1949…’ So according to the leading lawyer for the Church of England, Parliament has the power to legislate on marriage and has done so. Hill goes on to quote, in a different context, from Morritt, LJ in Williamson v. Archbishops of Canterbury and York, a judicial challenge to the ordination of women: ‘[T]he Church of England is and at all material times has been the established church. As such its doctrines and government were and are susceptible to change by the due processes of law’. (emphasis mine)So it seems that the archbishop has gotten it exactly backwards. Even if its doctrine were opposed to, say, same-sex marriage, parliament’s authority to legislate in that area is not restricted by the church’s different view of these matters. Until the UK adopts a different system of government, parliament can do whatever a majority of its members think is best. The Church of England has, since 1919, been allowed a great deal of autonomy to legislate concerning its own, internal affairs. But that autonomy is not a right, as rights are not entrenched in the British constitution; instead, it is a matter of grace. Moreover, while much will undoubtedly be said in the coming months about religious freedom, that freedom must at least be limited for an established church that has a privileged role in the state. Anyone for a codified constitution, with a bill of rights that protects freedom of religion and prohibits establishment? I didn’t think so.
Channel 4 News has run an expose on campaign spending by MPs in May’s general election. Zac Goldsmith (Con, Richmond Park) did not acquit himself well during an interview with Jon Snow, and now the Electoral Commission has announced that it will investigate his expenses. Channel 4′s expose seems like an effort to replicate the Telegraph’s exposure of MPs improper expense claims. And there are similarities between the two: unrealistic caps on payment (in MPs’ salaries and for election advertising) led MPs and candidates to game the system by finding ways around the caps. Both were a fertile ground for legalistic interpretations of rules. And once legalistic interpretations had become commonplace, as they seem to have done, it became easy to use them to explain increasing deviations from the ‘spirit’ of the law–as difficult as such a spirit is to define in any meaningful sense.
The problem with the election funding scandal is that it’s nearly impossible to articulate administrable rules about election spending that can be both predictable and fair. Less experienced candidates (with fewer advisers willing to help them find loopholes) will inevitably suffer, and more experienced candidates (with resources to spend on coming up with creative interpretations of the rules) will benefit. The real winners are election lawyers.
One solution is the one followed by the United States, where election spending cannot be limited because of principles of Free Speech in the First Amendment but where elections are very expensive. That leads to its own problems in terms of rent seeking by candidates’ donors, who ask for political favours (or at least face time) in exchange for their contributions of money (as well as time and influence). Some political scientists speculate that the entire political economy of the United States may be broken because of this problem. But there are other ways of dealing with these issues.
Bruce Ackerman and Ian Ayres have made two neat proposals. The first, as a response to the US Supreme Court’s decision in Citizens United v. FEC, would prohibit all companies with federal contracts from making any donations to political campaigns. Since most large corporations have some contracts with the federal government, it would force all or them to make a decision about whether to eliminate the appearance of impropriety by foregoing either the donations or the profits from the contracts. The second (even neater) proposal would allocate $50 in patriot dollars to each voter, which would be contributed to a campaign anonymously through an ATM. Voters could also contribute their own money in addition to the amount allocated, but they would have to contribute that money anonymously as well. Thus, there would be no way for a candidate to know who had contributed to his/her campaign, and the adverse influence or campaign contributions on the political process would be limited, if not eliminated entirely. Corporate and other large contributions would be diluted with (substantial) federal funding, and it would be impossible for a legislator to grant any political favours to large contributors, as no contributors could prove that they had contributed.
The application to the British problem is not entirely clear, but there is one. First, the system in the United States emphasizes the provision of information (including advertising); the system in the United Kingdom emphasizes the need for candidates to have an equal opportunity to gain office. But that equality seems illusory when wealthy people, with access to legal advice and the ability to spend a great deal of money on durable goods (like Goldsmith’s famous tricycles and coats) can find ways around necessarily brittle rules on expenditures. One important question, which should be asked, is whether there is more demand for information during campaigns, or whether the market for information is currently saturated. That, of course, depends on the quality of the information being provided and on other largely indeterminate factors. But it seems like there ought to be a place for more debate, unconstrained by artificial campaign finance limits. Government funding is one way around the problem, which is frequently adopted in European countries; a market system (financed by the government) is another one, and that might be more administrable than any of the alternatives.
A.V. Dicey wrote, ‘Parliament… has… the right to make or unmake any law whatever . . . Parliament is not bound by its predecessor.’ The outline of the coalition agreement between the Conservatives and the Liberal Democrats provides,
The parties agree to the establishment of five year fixed-term parliaments. A Conservative-Liberal Democrat coalition government will put a binding motion before the House of Commons in the first days following this agreement stating that the next general election will be held on the first Thursday of May 2015. Following this motion, legislation will be brought forward to make provision for fixed term parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.
A ‘Parliament’ as the term is used here, exists between general elections. It can, but need not, be dissolved on a vote of no confidence in the government. Parliament cannot bind its successors, but it can bind itself for its own duration, even under Dicey’s rule. Assume also that the 55% rule applies to the current Parliament (which it may not!).
In the current Parliament, this means that David Cameron cannot go to her majesty and request a dissolution until May, 2015. That ties his hands. It also withdraws the royal prerogative to grant such a request for at least five years. However, if there is a vote of no confidence, that does not mean that there will be a general election. The Liberal Democrats will preserve their position as the pivot in the House of Commons for the full five years until May 2015. Assume that the 55% requirement will apply in the current parliament as well as in future ones. The Conservatives lack the ability by themselves to dissolve Parliament (55% = approximately 358 votes, depending on how one counts). Thus, if the Liberal Democrats leave the coalition and the Conservatives cannot pass supply or other important legislation, her majesty will call on the next largest party to form a government. That will be Labour. This strengthens the Lib Dems’ hand when they are negotiating with the Conservatives. It, too, preserves their position as a pivot in the House of Commons. This takes power from (a) the queen; (b) the executive; (c) a party in the House of Commons that has less than 55%. It gives power to everyone else. If you’re trying to force people to get along, that’s a good thing. If you want an elected dictatorship, it’s a bad thing.
No matter what, it’s another stake in Dicey’s heart if the legislation is passed, presumably with a supermajority requirement on its repeal, which limits every future government’s ability to dissolve but also narrows the royal prerogative. At the same time, it’s all in the details. Will there be a super-quorum requirement? How will the 55% be counted? Will the speaker and deputy speaker and Sinn Fein be part of the requirement?
This historical background just in: Constitution Unit Briefing Paper on 55% dissolution requirement.
What is the effect of a hung parliament? Constitutional reform is the objective of everyone except the Tories. But the problem is that there will be a coalition government in the coming months. If the Lib Dems and the Tories combine in a coalition and there is a referendum on electoral reform, then the Tories cannot claim that coalitions will not work if they are in one. They need to avoid that trap. So Ken Clarke claims (this evening) that if the UK adopts another electoral system, then uncertainty like that we are experiencing now will happen after every election. This is the beginning of the Tory spin, which is part of their forcing a coalition on Labour, the Lib Dems and other minority parties. But it is in the interests of member of a minor party and every member of a party that may not be in the majority in the future to reform the electoral system. The Conservatives are in retreat (probably for good reasons arising from their electoral and parliamentary base). But that does not solve the problem. The problem is solved by a LibDem-Labour coalition.
13 May 2010: Okay, so I got this one wrong. But isn’t Ken Clarke now in an interesting position?? Maybe the referendum on AV should take place later rather than sooner in the new Parliament–perhaps preceded by Lord Reform. As David Cameron said yesterday, ‘We’re all going to have things thrown back at us.’ Strident statements concerning constitutional reform will not be de rigueur in the new parliament.
The debate and division on Lord Alli’s amendment to the British Equality Bill reflect a number of really interesting things about the British government. First, the House of Lords is sometimes not as ridiculous as it would appear to be to someone who is not British. As with the (elected) United States Senate and the (unelected) United States Supreme Court, the House of Lords is a veto player that can drive policy closer to the status quo (especially in the run-up to a general election) and can even introduce new ideas into the political debate.
The news is not as positive for the Church of England. While a group of senior clergy (bishops and dignitaries in Anglo-speak) supported the amendment to allow non-Anglicans to hold religious ceremonies in connection with civil partnerships on religious premises, others like the Bishop of Winchester seek continuing protection of the church. Only the most attenuated arguments support a threat from outside the Church of England based on hypothetical application of EU anti-discrimination laws. More likely are the possibility that (1) the Church of England will be forced to debate whether to allow such ceremonies to take place in its churches or (2) a renegade rector will conduct ceremonies in a church, where he holds a parson’s freehold. The strict hierarchical structure of the Church of England is not always as strong as it appears, and traditionally local clergy have had a great deal of power. S.J. Brown has referred to the nineteenth century financial provision for local churches as creating local establishments in each parish; his point is illustrative.
What we can hope for is rational debate. As long as people of differing opinions can argue about principles, then there is hope for a reasoned outcome. My fear is that fuzzy thinking and slippery slope arguments will be emotionally persuasive and will carry the day.