Lawmaking for the Church: The Church of England and Marriage

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.

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