(Originally posted on OxPol, the Oxford University Politics Blog)
Since last Sunday, plenty of ink has already been spilled following the death of Justice Antonin Scalia, who had served on the United States Supreme Court since 1986. Following the obituaries, newspapers, law journals and political commentaries will be filled for the next few weeks with evaluations of his judicial legacy, the consequences of his death for the court, and its impact on the current presidential election in the United States. Already the New York Times and the Washington Post are filled with speculation about the latter two and editorials about the first.
The easy, obvious point to be made is that he was one of the most influential jurists of his age, emphasizing a form of originalist interpretation of the US Constitution that has gained prominence, particularly among conservative jurists in the US, but which has become an accepted approach for progressives, as well.
The other parts are a matter of greater speculation.
Let’s start with the legal implications.
During the interim, before Justice Scalia’s vacancy is filled, there will be only eight justices on the court. While it will now be more likely that the justices will divide evenly on difficult cases, Justice Kennedy will remain the swing vote, providing a fifth vote for a majority of progressive justices (Ginsburg, Breyer, Sotomayor and Kagan), and remaining with the conservatives (Thomas, Roberts and Alito) in tie votes, which will leave the lower court’s judgment in place and will not operate as binding precedent on lower courts. In effect, there is no longer a conservative majority, although there can be a progressive one, if Kennedy decides to join in.
The court is hearing a number of high-profile cases this term, and the political implications for those decisions depend on the status of the case coming from the lower court. Whole Women’s Health v. Hellerstedt (No.15-274) involves a Fifth Circuit decision approving a state law that virtually eliminated abortions in Texas. Unless Justice Kennedy can be convinced that Texas has effectively outlawed abortion by imposing onerous regulatory requirements (thereby violating the Fourteenth Amendment), he will stick with the conservatives, and the Fifth Circuit’s decision will remain in place: a conservative win, but one of no precedential value. In Tyson Foods v. Bouaphakeo (No. 14-1146) a different court of appeal agreed that a class of workers could be certified as a group to pursue their members’ claim that they should have been paid for the time when they were putting on safety equipment. A tie vote would leave the plaintiffs’ damage award in place: a victory for the progressives. One possibility is that cases that are close will be held over for re-argument in the court’s October 2016 term. That option carries uncertainty for both sides, as it depends both on who is elected, on whom they nominate and on whom the Senate approves.
Meanwhile, the politics is even more unpredictable.
In terms of the presidential election, the justice’s death has already brought about a re-focus on the importance of the president’s role in appointments to the court. This aspect of the president’s job had been all but ignored in the primaries, although it was certain to become an issue in the general election. Following a brief waffle by Jeb Bush on Sunday night, all of the Republican candidates have followed Senate Majority Leader Mitch McConnell, who has said that the Senate will not approve a nominee until after the next president takes office. In the past, the Senate deferred to the president’s choice of justices, as well as other federal judicial officers, but since the Nixon administration that deference has declined and appointments have been seen as more political, particularly following the Senate Judiciary Committee’s hearings on the appointment of Clarence Thomas. This means that Republican senators who could face a primary challenge (from the right) have a strong incentive not to cooperate and approve a nominee before next year. Moreover, when the Senate changed its filibuster rules in 2013, so that judicial nominees were exempt, the change did not extend to Supreme Court nominees. Those nominations still require 60 senators before they can move to a floor vote.
But more importantly, Justice Scalia’s death concentrates the minds of both Democrats and Republicans on the fact that the justices are relatively old. The median age of those on the court (before Justice Scalia’s death) was 67 years, 7 months (Justice Thomas), and two other justices (Ginsburg and Kennedy) are close to Justice Scalia’s age (82 years, eleven months and 79 years, six months, respectively). Only three (Sotomayor, Roberts and Kagan) are under the traditional retirement age of 65.
In the past few days, a few trial balloons have been sent up about how odd it is to wait for justices to die before replacing them. Mutterings can be heard (of varying levels of seriousness) that the United States should move to extended, fixed terms for Supreme Court justices, of 18 years, staggered so that each president would be entitled to appoint two per term. Unlikely as this seems, it might make sense both in terms of reducing the partisanship of the court’s judges and in terms of depoliticizing the process of selecting them.
A week ago the House of Bishops of the Church of England issued a pastoral letter concerning the Church of England’s response to the first celebrations of same-sex marriages, which will take place later this year. The pastoral letter was carefully qualified: on the one hand, the archbishops of Canterbury’s and York’s cover letter conceded that ‘same sex relationships often embody genuine mutuality and fidelity, virtues the Book of Common Prayer uses to commend marriage’; on the other, they said, ‘The Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged.’ The bishops have been criticized. Conservatives have argued that the bishops’ agreement to prayers, even if not to blessings, following same-sex marriages implies that God approves of such unions. More progressive critics have objected to the blanket prohibition on clergy entering into same-sex marriages, which was also part of the guidance.
One of the most interesting exchanges on the matter took place on Twitter between a senior academic who specializes in the sociology of religion, Professor Linda Woodhead, and the Director of Communications for the Church of England, the Rev. Arun Arora. Woodhead pointed to a statement in the Appendix to the pastoral letter, which said,
The first same sex marriages in England are expected to take place in March. From then there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.
Woodhead first tweeted, ‘HoB statement says church and civil law on marriage have never diverged before. What about eg remarriage of divorcees?’ To which Arora responded: ‘Believe since civil law on marriage came into force in 1753 under Hardwicke Clergy been able to marry divorcees in church.’ Following an exchange that lasted from noon on 17 February until the following morning, Woodhead posted an article on the website Thinking Anglicans, in which she developed her point, including references to the Deceased Wife’s Sister’s Marriage Act and the Matrimonial Causes Act 1857. She argued that the claim by the bishops was mistaken. My friend the lawyer Frank Cranmer took up cudgels on behalf of the church. In what follows, I want to identify two aspects of the debate and weigh in on them and then to identify areas where parties should really be taking up cudgels.
Linda Woodhead and the Church of England
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.
Arora said in a later tweet that his response, quoted above, relied upon a paper produced in 2000 for the Church of England’s General Synod: Marriage in Church after Divorce. The paper was produced in the context of the debate over whether the church should officially recognise the fact that its clergy had for some time been marrying people who had a divorced spouse still living. It includes an extremely tortured argument that divorce in church had long been possible:
When Parliament first laid down formalities for the solemnization of marriage in Lord Hardwicke’s Act of 1753, it required all marriages (other than those of Jews and Quakers) to be according to the rites and ceremonies of the Church of England. Divorce was available by Act of Parliament, and was extremely rare (typically with only one or two cases per year) but, until the Marriage Act of 1836, further marriage after divorce was only possible in church (except for Jews and Quakers) and it was the duty of clergy to conduct such services. Between 1753 and 1836, there was therefore a legal entitlement to be married in church after divorce, albeit an extremely rare occurrence.
The paper goes on to say that the 1857 Matrimonial Causes Act offered some measure of protection for clergy consciences, by allowing them to refuse to marry divorced persons (although they still had to make their buildings available).
The statement quoted above is misleading in a number of ways. It is true that after 1753 the only place where divorced people (other than Quakers or Jews) could legally remarry was the Church of England. That does not mean that there were any such remarriages. From the time of Elizabeth I, when Archbishop Whitgift undertook a series of legal actions to prove the point, the law had been clear that remarriage after divorce was not possible in England. (Stone, The Road to Divorce (OUP 1990), p. 305) From the 1690s, however, an exception to this general rule arose, so that wealthy people were able to obtain an Act of Parliament for divorce and remarriage. The cost of these proceedings (approximately £350,000 in today’s money) made them available only to the wealthiest and most powerful. The paragraph above actually understates the number of such divorces, which reached an annual high of ten in 1799. However, they were all necessary to preserve hereditary property dynasties. One of the earliest divorce bills alleged, ‘Henry Duke of Norfolk hath no issue, nor can have any probable expectation of posterity to succeed him in his honours, dignities and estate unless the said marriage be declared void by authority of Parliament, and the said duke be enabled to marry any other [sic] woman’. (Stone, p. 314)
Linda Woodhead and Frank Cranmer
After Woodhead had posted her longer reflection on ‘Thinking Anglicans’ on 18 February, Frank Cranmer, an expert on law and religion, entered the fray. Cranmer began by disputing both of Woodhead’s examples of previous points at which church teaching had diverged from civil law – over marriage of a divorced wife’s sister, and over remarriage of divorcees. After some debate, he conceded Woodhead’s second example (and thus that the House of Bishops Guidance statement was in error), writing on his blog in reply to a comment by Woodhead: ‘My problem with your criticism of the passage from the HoB’s Statement that you quote is not the change in policy on remarriage of divorced persons: civil law and Church doctrine certainly diverged and on that you are obviously correct’.
What Cranmer still objected to, however, was the argument that the deceased wife’s sister issue contradicted the bishops’ statement by constituting a divergence. The dispute focused on the quotation at the beginning of Woodhead’s Thinking Anglicans post, where she pointed out that Archbishop Randall T. Davidson had said, during the debate on the Deceased Wife’s Sister’s Marriage Act,
For the first time in the history of the Church of England has the law of the State been brought on one specific point into direct, open, overt contrast with and contradiction of the specific and defined law laid down in the authoritative regulations of the National Church. (Lords Hansard vol. 182 col. 14, 26 August 1907)
In his response to Woodhead, Cranmer depends upon the distinction between indissolubility (lifelong marriage), which he agrees is definitional about marriage, and the choice of whom to marry (which he regards as incidental). As Cranmer wrote, ‘by definition, the man whose wife had died was free to remarry someone: the issue was whether or not he could marry his wife’s sister’. With all respect (and I have a lot for my friend), I think that this approach narrows the question too far.
Cranmer and many others look to the legal definition given by Lord Penzance in Hyde v. Hyde and Woodmansee, (1866) LR 1 P&D 130 at 133, that a marriage was the voluntary union for life of one man and one woman to the exclusion of all others. For context, it is important to recall that that case was about a marriage in Utah in the United States, at a time when polygamy was allowed \(the emphasis should be on the word one). But surely the definition of marriage is restricted in other ways, as well. Under ancient canon law, so-called ‘diriment impediments’ make a marriage void, so that it is not a marriage at all. The civil law enforces some of these diriment impediments, making marriages subject to them legally void. (Matrimonial Causes Act 1973 (c. 18) § 11) Historically, children of void marriages were not presumptively the children of the father, as they were in other marriages (they could even be rendered illegitimate by divorce), and property rights that accrued during or as a result of the marriage were unenforceable. Compare these examples with the Duke of Norfolk’s divorce bill above, requesting that his marriage be declared void: all determine whether the marriage in question is void from its inception, as though it had never existed at all. For the parties involved, these are all definitional questions.
Woodhead argued this point on Cranmer’s blog. ‘Frank,’ she wrote, ‘I don’t see how you can say that the class of people you can marry is not part of the definition of marriage. I can’t “marry” my brother or mother any more than I can marry a second husband [if remarriage after divorce is not allowed]. If the definition of the class of people you can marry is not part of definition of marriage, then marriage of man to man or woman to woman would not change our understanding of marriage, surely?’ I think Woodhead is right.
Consanguinity (relation by blood; a parent cannot marry a child) and affinity (relation by marriage) may be diriment impediments that make the marriage void under both civil and religious law. As if to underline Woodhead’s point, these prohibitions are in the same section of the English statute that prohibited marriage between parties not respectively male and female. In addition, until recently a purported marriage between two people of the same sex would have been considered a sham marriage, just as conservatives today put quotation marks around the term marriage when it refers to a same-sex marriage. It seems difficult to distinguish between these cases. The Deceased Wife’s Sister’s Marriage Act changed the definition of marriage just as the Matrimonial Causes Act 1857 and the Marriage (Same-Sex Couples) Act 2013 did.
Laws change things; that’s what they do.
Facts about the Doctrine and Law of Marriage
Iain’s and my objective, when we wrote our book, was to contradict statements like the overly broad one by the House of Bishops that Linda Woodhead criticised and to refute partisan Just-So Stories like the one that Arora relied upon.
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 before the industrial revolution pretty much no one cared whether poor or middling people married or divorced, had sex with their neighbours or abandoned their spouses or whatever, except for the immediate community where they lived. (Married people with a former spouse still living certainly were able to to live together with local social approval; US President Andrew Jackson is a case in point. Indeed, there were almost certainly times and places when same-sex couples were allowed to do so.) Before the industrial revolution, the main subjects of legal, political and religious concern were wealthy people, whose property had to be regulated. Following the industrial revolution, more people had property, and marriage laws, which directed the flow of that property, became more generally applicable and enforceable.
Fact: The Church of England’s rules about marriage have changed as well, albeit more slowly than the civil law. This is not the place to speculate about why they lag behind the civil law. But the evidence is available from the examples discussed above. Divorce became available under the civil law in England and Wales in 1857, but Church of England clergy did not have to marry divorced people. The Church of England did not officially permit remarriage after divorce until 2002. Even then it did so grudgingly: its canons and doctrine still refer to life-long indissolubility. When the Deceased Wife’s Sister’s Marriage Act finally became law, it had an exemption that allowed clergy to refuse to conduct such marriages, even though they were (arguably) required by law to marry all other comers (except divorcees). The Marriage (Same Sex Couples) Act 2013 contains analogous provisions in its quadruple lock, which allows denominations and clergy not to marry same-sex couples. The difference is that rather than respecting the consciences of individual clergy, the exemption for same sex marriage, for the first time in history, allows the entire Church of England to exempt itself from the law, including clergy who wish to marry same sex couples. This is the really radical change brought about by the same-sex marriage law, and it is a change in the religious establishment, not a change in the definition of marriage.
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.
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.