At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
For example, when Parliament enacted the Matrimonial Causes Act 1857, which transferred jurisdiction from the ecclesiastical courts of the CoE to the High Court, it stated that the High Court should be ‘conformable to the Principles and Rules on which the Ecclesiastical Courts have heretofore acted and given Relief’. The CoE retains considerable control of the content of canon law through Measures (created by the Church of England Assembly (Powers) Act 1919) that enable it to make amendments and create new provisions. Measures are submitted to the Ecclesiastical Committee of the UK Parliament for consideration and are ultimately subject to Parliamentary scrutiny and approval. Canon law does therefore rely on Royal Assent and License but, where this is given (which it almost always is), it continues to form primary legislation made by the CoE.
Canon B 30 of the most recent edition of the Canons provides the canonical definition of marriage:
The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union, permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side.
Reading the response of the CoE to the equal marriage consultation, one could be forgiven for thinking that the Government was proposing legislation that would change this definition of marriage in canon law. The CoE state, for instance, that:
Were legislation to be enacted by Parliament that changed the definition of marriage for the purposes of the law of England, the status and effect of the canonical provisions that set out the Church’s doctrine of marriage as being between one man and one woman would be called into question.
Yet the Government’s consultation document explicitly states that:
marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage…
What is the problem?
So what is the CoE’s problem? They claim that legalizing same-sex civil marriage will produce an irreconcilable conflict between canon and statutory law. They argue that because the ‘Canons of the Church of England are part of the law of England’, the existence of new statutory law on same-sex civil marriage would create an unsustainable ‘clash’ between, what Lord Carey has gone on to describe as, ‘mutually contradictory versions of matrimony within English law’.
This argument is an obfuscation of the relationship between canon and statutory law that is long established and clearly defined in England. Section 1(3b) of the Synodical Government Measure 1969, applying the provisions of the Submission of the Clergy Act 1533, states that ‘no Canons shall be made or put in execution […] which are contrary or repugnant to the Royal prerogative or the customs, laws or statutes of this realm’. Since the Government are proposing legislation that relates only to civil marriage, and not to marriage that falls within the ambit of canon law, the CoE’s canon law on marriage will not be contrary to the ‘Royal prerogative or the customs, laws or statutes’ of England.
The Government’s proposals on same-sex marriage exercise Parliamentary sovereignty in a manner that pays (rightly or wrongly) the greatest respect to the existing role of canon law. Because Parliament acts as the proxy for the royal supremacy to which canon law must acquiesce, the Government could have sought to supersede canon law on marriage by introducing statutory legislation that conflicted with it. That it has explicitly chosen not to do this should be seen as a sign of support for, rather than an attack on, the long-established relationship between church and state in England. Regardless of whether one believes (as I do) that the Government is wrong to seek to prohibit same-sex religious marriage, it cannot be accused of ‘vandalizing’ canon law or creating the ‘worst threat’ to the CoE since it was established.
The CoE’s argument regarding canon law is without any foundation. Canon law, under the Government’s proposals, will be left untouched. The CoE could even, should it wish to, strengthen the heterosexual exclusivity of its canon law on marriage through the introduction of new Measures prohibiting same-sex marriage on its religious premises in the future; the proposed statutory legislation on same-sex civil marriage would provide no bar to it doing this. Like others, I believe that this would be regarded as acceptable by the European Court of Human Rights under Article 9 of the European Convention on Human Rights.
In light of this, the focus on canon law in the CoE’s response to the consultation must be seen as a cynical strategy designed to stall this important development in civil marriage law. It is a tactic that attempts to obscure and mystify the relationship between canon and statutory law in order to convince of the CoE’s legal authority in marriage. Yet neither canon law nor the CoE has any legal influence in respect of civil marriage which remains regulated solely by common and statutory law.
Whilst the CoE’s response to the Government’s consultation demonstrates its trenchant ideological opposition to the social evolution of marriage, its reliance on canon law reveals how threadbare its arguments have become. In place of robust and rational argument, the CoE have resorted to incoherent and flawed legal claims which, once subjected to scrutiny, fail to provide any justification for preventing gay men and lesbians in loving, permanent and life-long relationships from contracting civil marriage.
Paul Johnson is Anniversary Reader in Sociology at the University of York. This piece is an edited version of a longer article originally published in Jurist.
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