Archbishop on warpath

29 January 2012 by

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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  1. Toby Keynes says:

    This is a fascinating case of senior members of the Church of England setting themselves in opposition to freedom of religion for other religious groups.

    I suppose one should expect the established church to use its privileged position (though its place in the House of Lords) to assert its authority over those it sees as competitors.

    The Church of England does not wish to allow same-sex couples to celebrate their civil partnerships on its premises, so to protect its position it has decided that no other religious groups should be allowed to celebrate such civil partnerships on their premises either.

    Fortunately, this government is determined to allow other religious groups, including Quakers and many other Christian bodies, to practice and celebrate their faith by conducting civil partnership ceremonies in their places of worship.

    Freedom of religion – 1.
    Church of England – nil.

    (Toby Keynes, Chair, Humanist & Secularist Liberal Democrats)

    1. RCAP says:

      This is a very good point. Do you think there is any possibility of a via media, whereby religious groups who wish to celebrate homosexual marriages would be entitled to do so, while those which do not would be in some way protected from potential challenges via equality legislation?

      1. Waldron-fan says:

        Isn’t that just exactly what s202(4) Equality Act 2010 is making an honest attempt to do, by inserting the new s6A(3A) in Civil Partnership Act 2004 “For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

        If there is a real argument about this (as opposed to each side putting up phantom enemies to knock down), then shouldn’t it be about whether this is a sensible compromise and if so then whether & how it needs to be made more effective in doing what it is admirably clearly attempting to do (which is exactly what RCAP seems to be asking for)? I cannot see that anyone could sensibly claim not to understand the drafting. If people have concerns about its robustness, why isn’t the debate about whether it would be strengthened by amending it to something like “Nothing in this Act, the Equalities Act, the Human Rights Act or any other law is to be read as placing an obligation …”?

        The problem seems to arise partly because some in CofE appear to jump to assuming s6A(3A) will not work. But that is fuelled partly by some human rights proponents, who appear to make unsubstantiated assumptions about non-discrimination in religion (as if it means a particular religion can’t turn away someone who doesn’t subscribe to their doctrine) and about what line ECtHR would take (this is one Act of Parliament amending another, in a complex area, with surely a wide margin of appreciation, etc).

        So both sides end up shouting about a problem which isn’t really there, promoting their own agendas by wilfully ignoring the sensible compromise that has been on the table for 2 years. There is an element in both camps which is contemptuous of the democratic process of compromise and wants to pull religious or human rights issues out of the hands of the voting public.

  2. Alasdair Henderson said.
    Isn’t he just publicly expressing his view that the definition of marriage should stay as it has for centuries, and seeking to persuade people to agree with him?
    The Church can never dictate their conservative views about marriage/divorce/sexuality etc on the rest of us. This is why we need a secular state.

    Rape in marriage was acceptable until very recently. Should that have been kept unchanged.

    Marriage IS a legal institution and can and should be changed for the better.
    I am a humanist celebrant and have conducted many gay weddings long before they were legal. The legal process and the ceremony can be separate and fulfill different functions.

    Besides funerals I now mainly conduct Naming/Wedding combined ceremonies which I promote as the hassle-free, inexpensive wedding alternative to the expensive, extravangant affairs that modern weddings have become exemplified in the virginal white wedding dress which was popularised by Queen Victoria. Our ceremonies can be held anywhere within the community.

    I also believe that we should have divorce ceremonies but I seem to be ahead of my time on this.

    1. RCAP says:

      A couple of points –

      1) “The Church can never dictate their conservative views about marriage/divorce/sexuality etc on the rest of us”.

      If we’re going with a “live-and-let-live” mentality, shouldn’t the Church (and other relevant religious groups, subject to Toby’s point below) then be protected from being dictated to by the “rest of us”?

      2) “Marriage IS a legal institution and can and should be changed for the better. I am a humanist celebrant and have conducted many gay weddings long before they were legal”.

      I hesitate to state the obvious, but this is contradictory. I infer from your other comments that your “naming and wedding” combined ceremonies are not legal marriages, any more than these “gay weddings”. It would therefore appear that you do not consider marriage to be a legal institution, but one that has independent spiritual/personal/etc. significance. And that is precisely the problem.

  3. Richard Voyce says:

    Andreas really hits this on the head. All this babble about bringing religion, of whatever hue, into a matter which clearly belongs to the state is just hogwash.

    I’m an Athiest. I’m in a Civil Partnership with my partner. I don’t wish to be married in a church (though I would support the right of those who choose so to do) but currently I am not allowed to get married in a (civil ceremony in a) Register Office, as a mixed sex couple would be. That’s just plain wrong.

    I’m not asking for any more rights than any other UK citizen, but I don’t see why, as a British born tax-paying voter I should be expected to settle for any fewer.

  4. Alasdair Henderson says:

    Very interesting article, thank you.

    I don’t quite follow why the issue is whether Archbishop Sentamu’s voice is being ‘privileged over others’, though. Isn’t he just publicly expressing his view that the definition of marriage should stay as it has for centuries, and seeking to persuade people to agree with him? Surely he has the right to do so, in the same way as organisations like Stonewall have the right to express their view that marriage should be redefined to include same-sex couples, and seek to persuade people to agree with them? He’s not seeking any privileged position, nor ‘imposing his opposition’ to same-sex marriage on the rest of society any more than gay rights campaigners are ‘imposing their support’.

    1. Waldron-fan says:

      Fair enough … except that he knows the Government will be acutely aware he has an automatic seat in the legislature and is the 2nd highest of the group of bishops who all have similar seats (as the article does mention). Stonewall (or say the Equality and Human Rights Commission) are not given any such privilege. As a leader of the established church he and other CofE speakers also have other less dramatic but still “privileged” means of putting their views across (including access to schools).
      Less significantly, but still perhaps worth noting, Stonewall have to persuade their supporters of their view of the right way forward (and I assume they are divided about whether to accept this compromise or press for more). By contrast a church leader (established or not) has some divine authority when telling his flock that they should oppose a particular compromise on a piece of legislation.

      That said, I would still be happier to see the Archbishop and Stonewall debate the issue and openly try to persuade legislators, who then decide in our name and can be voted out or persuaded change their minds later.
      What concerns me is the background threat that whichever side feels they have lost the democratic argument will then run off to a judge to plead human rights (whether to freedom of religion or to non-discrimination), instead of campaigning politically against it among voters. A lawyer surely does not have to agree with this government over say prisoner voting & ECtHR, to feel uneasy about the idea that legal arguments about human rights should be able to trump the democratic process in deciding issues as finely balanced as this, or even that judges should have the sole authority to decide whether this is a decision that voters and parliaments can be trusted with.

  5. Adam Wagner says:

    Thanks for all of the interesting comments so far. You might be interested in this previous post too:

    Will churches really be sued for not allowing civil partnerships?

  6. Waldron-fan says:

    EdinburghEye is right. The article comes off the rails at “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” (falling for the “straw man” that EdinburghEye points out). That is exactly what the amendment stopped short of – partly for the good reason that such a right is difficult to make sense of. As EdinburghEye says, mixed sex couples of one religion have never been given a right to insist on having their union solemnised by a different religion, and no equivalent right is being created for same sex couples (so it is not a question of allowing the faith groups to carve out exceptions to that right).
    There may be arguments about how effective the non-coercion provisions would be, and whether they should be strengthened. But the “sterile” dialogue of the deaf will just continue if the human rights lobby, as well as the religious traditionalists, both assume that the non-coercion must be a cover for a wider agenda in the first place.
    Whether I think that religious homophobia should be tolerated, criticised or outlawed, surely human rights do not mean I have to claim that a Catholic must be allowed to worship in a Hindu temple. That must leave some room for compromise on this issue, without painting it either as allowing religious groups to write their own exceptions to fundamental rights or as dictating the contents of their faith to those groups. Legislation should be about democratic compromise – human rights fundamentalists’ opposition to compromise (you cannot allow exceptions to sacred constitutional rights) oddly mirrors religious fundamentalists’ objections.

  7. RCAP says:

    In a controversy with vast ramifications, this article’s initial focus on Archbishop Sentamu’s comments is unfortunate. The posited changes affect not only the established Church of England, but churches and other religious buildings of all denominations and religions. The author’s assertion that the key issue is “whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered” skirts the real issue: whether religious buildings, and religious rites, should be treated as public (ie. “state”) entities to which equality legislation should apply. After all, the right of “same sex couples to have their union recognised in the place of their choosing” presumably does not extend to my kitchen!

    The same difficulty clouds her treatment of the dubious belief/action distinction. Not only is the distinction philosophically unconvincing, but it depends for its utility on a pernicious prior assumption about the realm of proper state action: that wherever a person acts, the state is entitled to regulate that action. So, for the author, “where marriage is concerned, the private matter of faith (which the law quite rightly leaves alone) expands to include public rites”. Precisely why religious marriages are “public rites” is left unexplained.

    Presumably the answer is that many religious marriages constitute legal marriages (ie. marriages recognised by the state) and that, as a matter of policy, any provider of legal marriages should be required to comply with equality legislation. Yet neither this statement, nor any normative case supporting this statement, is found in the article. And it is difficult to see why any normative case should be preferred. Religious marriages are, in different ways to different religions, sacral concepts: they exist, as the author puts it, “on a spiritual level” (a level to which, even for the author, presumably the state’s authority should not extend). That the state may choose to regard certain religious marriages as constituting legal marriages does not thereby entitle the state to determine the sacral content of the religious marriage. And it is for this reason that many Christians, conservative AND liberal, object to the proposed legislation: not because of the decision made (with which many of them would be in agreement), but because the state, rather than the religion, is the one doing the deciding.

    And a final point, regarding the author’s accusations of sterility: the current debate presents a nice example of how easy it is to slip from the purported universality of human rights to the true “contemporary idiom of rights”: the rights we like, for the people we like. Perhaps the issue is not so sterile after all.

    1. ‘…the current debate presents a nice example of how easy it is to slip from the purported universality of human rights to the true “contemporary idiom of rights”: the rights we like, for the people we like…’

      I think you nailed it.

  8. EdinburghEye says:

    Lot of nonsense this.

    Only one country in the world – Sweden – has made it mandatory for a church to wed same-sex couples. Pastors of the Church of Sweden, the established/national Church, who are funded by the state, were not legally allowed to refuse a church wedding to any Swedish citizen – that applied to all mixed-sex couples and recently became applicable to all same-sex couples. This Swedish legislation for the Church of Sweden is quite literally the only example in over a decade where any church has been required to perform a marriage where the cleric objects.

    If you think about it sensibly, any and all churches, synagogues, Meeting Houses and temples, have and always have a right to refuse marriage to any couple for any reason sourced in their faith. The notion that this would be overturned for same-sex couples when it has never been overturned for mixed-sex couples is scaremongering nonsense, a straw man raised solely for the purpose of justifying denial of civil marriage to same-sex couples.

    If you think about it with feeling, too, can you imagine any reason why a same-sex couple would want to be wed by a homophobic cleric? On the happiest day of your life, would you want to see a grumpy face girning away about the spiritual inferiority of your relationship? No you wouldn’t.

    Plus, in strict accuracy, David Cameron’s announced plans for his consultation were for civil marriage only. His intention is to oppose religious freedom by continuing to enforce a ban on clerics who believe in equality. John Sentamu’s speech was all about how same-sex couples ought not to be allowed the same civil rights as mixed-sex couples – he was objecting to legal equality, not to spiritual equality.

    With regard to spiritual equality, of course who can say? Desmond Tutu has been proud to declare he believes all are equal in God’s sight: John Sentamu appears to be setting himself up in very public opposition to the South African archbishop. No doubt the Church of England will survive this schisming over whether lesbian and gay and bisexual and transgender Christians are to be welcome or unwelcome.

  9. Whose role – if not the state’s – is it to define institutions which have legal requirements and legal consequences and which you enter into at a town hall in front of a civil service employee?

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