Generalizations, Just-So Stories and Marriage Law and Doctrine

LM Cover SmallA 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

and

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)

Parliamentary Divorce Petitions and Acts 1700-1857, by decade (Stone, p. 325; Figure 10.1)

So the statement above leaves out two critical facts: that remarriage after divorce was available after 1753 (1) for wealthy people and (2) in order to preserve the succession of honours, dignities and estates. Once it became more generally available, clergy could refuse to remarry people, consistent with their conscience and with general church doctrine, which prohibited remarriage. At no point did the exception swallow the rule, as the church’s statement and Arora’s argument imply. Doubtless owing to the need to respond quickly to a tweet, Arora relied upon an unreliable account of the law of marriage, published by the Church of England to paper over the cracks left when it began to formally allow clergy to remarry divorced people. The rather embarrassing question that this unvarnished story raises is whether the Church of England, during the period between 1753 and 1857, had different doctrines for the wealthy and the poor.

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.

Mixed Marriage GravestoneFact: 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.

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  1. #1 by Thomas Renz on February 28, 2014 - 7:53 pm

    Fascinating. Does this mean that a single man who marries his dead wife’s sister remains a bachelor in the (canonical) eyes of the CofE?

  2. #2 by Daniel Hill on March 12, 2014 - 9:51 pm

    I think that the point at which the House of Bishops was trying to get was that this will be the first time at which the Church has not regarded as marriages things that the State does regard as marriages. This differs from the Deceased Wife’s Sister’s Act 1907, as is shown by this comment by the then Master of the Rolls in _R v Dibdin_ (1910 Probate 101)
    ‘the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (at 109). The point was that if someone (Mr Banister in the actual case) did marry his deceased wife’s sister then the Church had to regard it as a real marriage, even if it disapproved. In the actual case Canon Thompson refused to recognize it as a real marriage, and was disciplined for acting on this refusal. The same goes for remarriage of divorcees with first spouse still living: the Church has to recognize these as valid marriages, even if it thinks them illicit. But the Bishops’ point, as I understand it, is that the same does not go for same-sex marriages: the Church will not recognize them as real/valid marriages at all. So this will be the first time that the State has pronounced a marriage real and the Church demurred.

  1. C. of E. Bishops challenged re Church Rules on Marriage | Kiwianglo's Blog
  2. English Academics respond to C.of E. Bishops on Pastoral Letter | Kiwianglo's Blog
  3. Heaven is Weeping: An Open Letter to the House of Bishops @C_of_E @JustinWelby @JohnSentamu | Phil's Boring Blog
  4. The House of Bishops’ Pastoral Guidance on Same-Sex Marriage Part I – Engaging with the Critics | Fulcrum Anglican

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