Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. ”It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to ”impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
The non-coercion provision
The proposed legislation, it is said, will not coerce churches into holding marriage ceremonies for gay couples on their premises. But this panacea may achieve nothing other than sterile litigation around the reasonableness, or proportionality, of the individual cleric’s refusal to grant access to his premises. The message at the heart of the reforms, which church leaders have spotted, and what they are so sore about, is that same sex unions should be on equal footing on a spiritual level to those of traditional partnerships. Subsection 4 of the proposed new Equality Act Section 202 may give individual churches a let-out, but that is simply to relocate the problem in a provision that itself invites disputation.
The non-coercion arrangements sound sensible and conciliatory on their face. But they allow an exception to be created to what will (in due course) be a legal requirement, i.e. recognising the right of same sex couples to have their union recognised in the place of their choosing; and if this line is drawn by the religious association, the religious association is being granted the power to deprive as many individuals as it likes of the constitutional protections against discrimination based on sexual orientation.
Take for example this scenario. If schools were to have a rule that only people in heterosexual marriages could be employed as teachers, they would open to liability under a number of anti-discrimination provisions, whether under the 2010 Equality Act, the 1998 Human Rights Act (Article 14 in conjunction with Article 6 in any unfair dismissal suit brought under employment legislation). The difference, it is asserted, is that the tradition of heterosexual marriage is rooted in religious doctrine and tradition. So, such a school – in the unlikely event it were to exist – would be engaged in discrimination pure and simple, whereas the church’s discrimination is a function of its belief that the marriage of man and woman was sanctified by Christ and upheld by sacred tradition. This is, in a sense, a watered down version of Archbishop Sentamu’s broadside.
This turbulent priest
The stalemate between state power and church privilege is as old as the story of Henry II and his “turbulent priest”. The problem has barely changed, simply finding its modern expression in the contemporary articulation of rights. The church’s autonomy is fine as its scope is limited to the expression and profession of belief; but once it crosses over into actions the state has a duty to regulate, the free exercise of religious belief is being asked to give way to the authority of fair and neutral laws. Similarly, where marriage is concerned, the private matter of faith (which the law quite rightly leaves alone) expands to include public rites, and the distinction between the private and public sphere collapses. So, what is the proper role of the state in this stalemate? Does it tell the church that it cannot refuse to allow public recognition of same sex marriages? Can it say to the church, ” You may be worried about it but we have been mandated by the electorate to consign those anxieties to history. Give up your prejudices so that a system of laws put in place for everyone isn’t destroyed by exceptions.”
There is no escaping this dilemma, and that is exactly the conclusion the US Justice Stephen Breyer reached in a recent Supreme Court case on the clash between Lutheran doctrine and constitutional freedoms: “I just can’t see a way … of getting out of the whole thing.” The last thing in the world the courts want to do is evaluate religious issues. We have witnessed in a number of religious rights cases the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, as Justice Alito asks, “How are we going to avoid that? I just don’t see it.”
Dr Sentamu and his brethren can rest assured that, whatever the outcome of this consultation, this is not the last opportunity for the church to make its voice heard in the long running but ultimately sterile debate about whether largely neglected church buildings and their ecclesiastical overseeers can be called upon to bless this new, unorthodox, union of souls.
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