CofE’s wedding rules can be elastic when it wants them to be
Is the Church of England taking a consistent moral line over gay marriage? At one level it would be nice to think so. While I do not share the church’s opposition to same-sex marriage, no one is truly comfortable with tales of parents feigning faith to obtain a church school place for their children.
And as the established church, people of little or no faith expect the CofE to deliver the ceremonial venues and figures of English public life as if the church were a bit like the National Trust – there just to keep bits of England looking and feeling the same.
Too often, I think, the CofE’s moderate position, as compared with some churches, is mistaken for a lack of conviction or theological coherence among practising Anglicans.
Viewed like this, there is nothing wrong with the CofE taking a view. But there are reasons why it sounds wrong. It does not chime with the way I have seen the church approach marriage.
I am thinking of the way the CofE has tended to handle weddings in general. The church contends that the proposed law would compel parish vicars to perform same-sex weddings, even if the vicar disagreed with same-sex marriage (based on the current right of all to be married in their local parish church),
Thinking about the 25-plus Anglican weddings I have attended as an adult, I can in fact think of only one that was held in the couple’s local parish church. Of course many were marrying (after years of cohabitation) at a church near the bride’s parents’ home, but still, one needs the connivance of a vicar, or the official permission of the CofE, to do that.
Even for a bride who has not lived at her parents’ home for a decade or more, the fact that the couple are often not practising Christians is another reason to seek a non-local venue. Or, also known, the ethos of their local parish church does not best match their faith, so the church to which they have ties – and where they choose to worship – is two miles, not two streets, away.
So the CofE’s connivance or permission in varying the ‘parish church’ scenario is routine. But this most elastic of ‘rules’ is now being held up as a show-stopper for a piece of equal rights legislation.
But the objection does not reflect practice. It is clearly common for couples marrying in a CofE church or chapel to seek out a venue that suits the serious commitment they are making for matters of faith, geography, emotional ties, aesthetics, practicality or theological sympathies – or a combination of some or all of these considerations. (On the evidence of my circle, the couple have mostly not disappointed the church’s expectation of their commitment – of the 25, I can currently list only one divorce.)
It comes down to this – I cannot honestly see why same-sex couples, planning a Christian marriage ceremony, will behave any differently.
Is it honestly the CofE’s official contention that a gay Christian seeks out and joins a congregation who will be viscerally antipathetic to their sexuality? Or that anyone, of whatever sexuality, wishes to have their promise, ‘all that I have I share with you, all that I am I give to you’, blessed by a vicar who they know to be opposed to their union?
For church and state – subtly wedded as they are in this country – surely it is possible to find a way to make the proposed legislation work?
Comments
Making it work
Eduardo Reyes ends, “... surely it is possible to find a way to make the proposed legislation work?” I tend to agree but the practical implications should not be under-estimated.
To take just one aspect, it doesn’t seem too controversial to say that people have, in the past, thought of marriage as involving a husband (male) and a wife (female).
According to Lord Brennan QC writing in “The Telegraph” on 13 Mar 2012, the word “husband” appears 1,003 times in statute and “wife” appears 888 times.
Will it work simply to substitute “party to a marriage” in each of those statutes?
re: Alan Foster
I would suggest, Alan, that the majority of those statutes are already amended by the Civil Partnerships Act 2004, to add 'or civil partner'; retrospective amendment is not such a difficulty given the constitution's ability to repeal or amend simply by passing an express provision.
Unwarranted distinctions
Alan Foster: "Will it work simply to substitute “party to a marriage” in each of those statutes?" Yes, because those distinctions should never have been there in the first place in heterosexual marriage.
Unwarranted distinctions
Yes, I take the point.
In the interests of equality before the law, those distinctions which have been made in existing legislation may well not be valid. Providing equality of access to marriage will provide the opportunity of a wider review.
Changing attitudes
Surely it is just a question of the Church catching up with the times. Not that many years ago it was completely impossible for divorced people to remarry in church, even someone the victim of a real no fault on their side divorce such as for desertion. I know a long standing stalwart of her local church who 20 years ago couldn't even have a blessing of her second marriage because she had been divorced by her (very) adulterous first husband. She is still happily married to that second husband. Now surely most churches are much more prepared to allow people that second chance. Why shouldn't gay marriage become the same if it is only allowed in the first place.
I think the point about CofE
I think the point about CofE weddings is precisely the fact that there are a lot of ceremonies held where neither one of the couple has been a regular attendee at the church they have chosen to get married at. In the past the option was either a church wedding or a rather dour Registry Office wedding, but now the choices are much wider. As an ex CofE member there were times when wedding parties demanded unreasonable facilities and treated the church itself disrepectfully, much to the distress of the regular church attendees. People insisting on their right to get married anywhere they please, just making use of CofE facilities and not taking account of other people's beliefs is not the way to achieving a more tolerant society. If you are not a member of a CofE church why choose to get married in one when there are so many other options available?
reyes' article on marriage
Eduardo Reyes suggests that the CoE's tolerance of church weddings between people who are not members of a CoE congregation implies it must also tolerate church weddings between people of the same sex.
The implication fails because of this big difference between the two scenarios. In the first, an individual vicar can choose whether to host the wedding according to whether his own conscience allows him. In the second, after same-sex marriages are legalised, he will not be able to, because he will be breaking the law if he refuses. Homosexual partners will be entitled to insist on exactly the same marriage facilities as heterosexuals, and they will be able to use the criminal law to enforce this entitlement.
Eduardo is also wrong to suggest that gays will not wish to have their marriage blessed by a vicar who they know to be opposed to their union. Previous experience shows that some of them will do exactly that in order to make their political point.
Karon Monaghan QC
On 12 June 2012 the human rights group Liberty released a legal opinion by Karon Monaghan QC, who specialises in human rights, equality and discrimination law that contradicts the argument that faith institutions may be forced to conduct same-sex marriages.
She states that:
“the protection afforded by Article 9 to religious organisations is strong…I consider that requiring a faith group or a member of its clergy to conduct same-sex marriages contrary to its doctrine or the religious convictions of its members would violate Article 9. Any challenge brought on human rights grounds seeking to establish a same-sex couple’s right to marry in church would inevitably fail for that reason. In balancing the rights of a same-sex couple and a religious organisation’s rights under Article 9 (in particular, in relation to a matter such as marriage, so closely touching upon a religious organisation’s beliefs) the courts would be bound to give priority to the religious organisation’s Article 9 rights.”
(http://www.liberty-human-rights.org.uk/media/press/2012/leading-qc-contradicts-equal-marriage-critics-proposals-.php)
Karon Monaghan QC
The Court of Appeal's decision in Bull & Bull v Hall & Preddy (the bed & breakfast case) and in precedent cases such as Williamson and Campbell, do not support Monaghan's view.
Pace the Liberty press release, the Church of England can have little confidence in the strength of freedom of conscience protection under Article 9. In general the courts have ruled that Article 9 rights are qualified and easily overridden by considerations of public policy, such as equality legislation.
"To fall within Article 9 a belief must be consistent with basic standards of human dignity or integrity" (Williamson)
"It is clear that the rights protected by [Article 9] are qualified, and that it is only beliefs which are worthy of respect in a democratic society and are not incompatible with human dignity which are protected" (Campbell)
"... [the Article 9 right] is not absolute and can be limited to protect the rights and freedoms of the claimants." (Bull)
"... the right to manifest one’s belief, as opposed to the right to hold it, is qualified by such limitations as are prescribed by law and are necessary in a democratic society… for the protection of the rights and freedoms of others. Such rights include [rights] under the Equality Act (Sexual Orientation) Regulations 2007." (Bull)
A court might apply any one of those to rule that a vicar cannot lawfully refuse to marry a same-sex couple. For example it could decide that a belief in exclusively heterosexual marriage is not "consistent with basic standards of human dignity or integrity"; or that it is not "worthy of respect in a democratic society"; or that it "does not adequately protect the rights and freedoms of others".
Given the purely subjective nature of criteria like "worthy of respect" and "consistent with integrity" it is quite likely that the courts will interpret them differently to a CofE vicar. And, in view of the outcome in Bull, very probable.
Karon Monaghan QC
I have never practised in human rights / discrimination law but the opinion expressed by Karon Monaghan QC feels right to me.
I have also read an article in the Guardian of 12 June written by Adam Wagner, who I understand is another specialist barrister, called “Gay marriage: the Church of England's argument dissected”. (http://www.guardian.co.uk/law/2012/jun/12/gay-marriage-church-england-argument)
He says,
“The church's reasoning is forceful and interesting. I expert it was written by a lawyer with relevant experience, perhaps James Dingemans QC (just a guess). It should be taken seriously.”
Nevertheless, he concludes:
“So the church may be right about a potential human rights challenge to the changes as proposed in the equal marriage consultation. But it has inflated the chances of the challenge succeeding. More importantly, even if such a challenge was successful, it is inconceivable that a court would force any religious institution to perform a gay marriage; the most that it would do is rule that religious organisations should be given the choice...”