Church of England’s argument against gay marriage is without foundation – Paul Johnson

15 June 2012 by

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.

Cynical strategy

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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  1. Lazarus says:

    ‘its trenchant ideological opposition to the social evolution of marriage, its reliance on canon law reveals how threadbare its arguments’

    When you start using highly emotive language like this, you need to be very sure of your legal case: even if the C of E’s analysis were wrong, it would still be a long way before you’d shown that their case was so obviously flawed that it could only be a ‘cynical strategy’. Benjamin Gray’s comment is spot on: even if you think this issue is resolvable in some way, the C of E’s argument clearly has some merit.

  2. Forgive me if I’ve missed something, but as I understand it (admittedly only from browsing Halsbury’s), there is no such thing as religious vs. civil “marriage”. There is only one institution, albeit with a variety of ceremonies (broadly CofE, Secular and other religious). One room, different doors; not different rooms. The terminology of “marriage” as ceremony and “marriage” as institution seems to be blurred here.

    If the law as it currently stands (partially in the form of the MCA 1971) is amended, the effect will be that marriage, as a single institution, will no longer be defined as being monogamous and sex-specific.

    If that is the case, then the CofE definition of marriage would be at odds with the legal definition. The worry is then that they would be open to legal challenge that would force them to perform ceremonies for same-sex couples.

    I don’t say this by way of argument against gay marriage (I’m broadly in favour). But it seems to me that this argument has some merit in it, and requires a much more serious consideration of how to implement the change while respecting the conscience rights of others. Going around supposing it only affects one discrete “form” of marriage ignores that the law at present (appears) to treat it as a single whole.

    1. David Lamming says:

      Benjamin: you are absolutely right. Paul Johnson is making the same error as the Government has done in its consultation paper by confusing the institution of marriage with the ceremony (or process) by which two people become married. As I pointed out in my letter, published in The Times on 15 March 2012, marriage cannot be split between civil marriage and religious marriage as the Government seems to think. This was made clear over 100 years ago in R v Dibdin [1910] P 57 (CA), [1912] AC 533 (HL). In the Court of Appeal, Fletcher Moulton LJ said (p. 114): “The contract of marriage is a contract whereby a man and a woman accept the relationship of husband and wife, the one to the other, and the status and obligations that flow therefrom. The procedure by which the contract can legally be made may vary widely, but the result is in all cases the same. To the law there is only one contract of marriage.” In the House of Lords, Lord Ashbourne said (p.543): “They are lawful spouses, whether married in church or registrar’s office, and must in law be so regarded.”

      The lack of any reference to this leading case highlights the paucity of legal analysis in the ‘Equal Civil Marriage’ consultation paper, albeit that para 2.15 states the “intention to enable all aspects of current marriage and divorce law to apply to same-sex couples…. This means that the reasons for ending a marriage will be the same for all couples, regardless of gender and regardless of how they had entered into the marriage – whether through a religious or civil ceremony.” The paper then proposes that what will constitute same-sex consummation and same-sex adultery (concepts which are absent from civil partnerships but which will apply to proposed ‘equal’ marriage) is to be left to case law to develop: i.e. it’s a consequence of the Government’s proposal too problematic for Government to consider so they will leave it to the judges. Hardly an appropriate way to legislate a fundamental change in one of society’s basic institutions!

    2. Waldron-fan says:

      I agree that Paul Johnson’s piece does seem to miss the point of CoE’s claim about the state changing the unitary nature of the “room”/institution that the church “door”/ceremony is giving access to. But isn’t CoE’s problem with this argument that the fact that they have already sold the equivalent pass on marriage for divorced people? Canon law says the institution is “lifelong … till death do them part” (and I believe CoE, unlike some Jewish & Muslim creeds, does not give its own divorces), and CoE only started allowing divorced people to marry in 2002 and only then at the Priest’s discretion. The state will divorce people and allow divorced people to marry, and does not ask couples to declare that they will stay together permanently (so atheist lawyers are free to marry in the Register Office on the basis that they know they can divorce on 2 years’ separation plus consent). Surely that means CoE has already long since accepted that the state is letting additional people into this insitution on the basis of having a very different conception of its nature, and that CoE accepts that it just has tighter rules on who can get through its door into that institution, without canon law being threatened by civil law’s different conception of the room they are entering.

      1. Paul Johnson says:

        Hello Benjamin, David, and Waldron-Fan. Thanks for your comments. With respect, I don’t think I have missed a point made by the Church of England or am making the mistake that you attribute to the Government. You are right that marriage is marriage is marriage. No one disagrees with the interpretation that, regardless of where it is contracted, marriage is one institution. I made that point in a reply to David above.

        The Government have adopted – and I have reiterated – a form of words that distinguishes between marriages that are formalised on civil premises and on religious premises. The law which regulates how marriage is contracted across these civil and religious spheres is made up of (at least) 500 years of canon, common and statutory law. It is true that in respect of the heterosexual exclusivity of marriage canon, common and statutory law have remained in sympathy with each other. That is why David can points to a heterosexual definition of marriage given in the Court of Appeal 100 years ago and in the longer version of my article, published in Jurist, I could give an even older one. But these three sources of law have often diverged and, in their diversity, have supported different understandings of marriage according to context.

        For example, Canon B 30 of the Church of England makes provisions for marriage in respect of persons who have been divorced. The statuary law on marriage respects the existence of canon law on divorce and allows the Church of England to refuse to marry divorcees; something which would not hold in the context of a civil marriage (by which I mean: a marriage contracted on civil premises). This legal distinction in the approach to divorce – between canon and statutory law – have often produced the same type of arguments about a ‘clash’ and ‘disintegration’ of church and state found in debates about same-sex marriage (not least in the context of the marriage of Charles and Camilla when, to ‘fudge’ the problem, the couple had a civil ceremony and then a religious blessing). Another example: go and have a look at the section on ‘marriage’ in ‘Quaker Faith and Practice’. Section 16.32 shows the way that canon and statuary law differ on the arrangements for marriage but, in this context, have been accommodated by the Quakers themselves:

        “Although Friends’ marriages are exempted from certain provisions of the Marriage Act 1949, nevertheless it has been decided by the yearly meeting that marriages shall be solemnised on any day within the hours enacted for marriages generally (between the hours of eight in the morning and six in the afternoon) in a meeting house or other place to which the public has access and where a recognised public meeting for worship is regularly held at least once every calendar month”.

        The key point I was making in my piece was that there are many ways in which canon, common and statutory law on marriage differ and that the Church of England’s argument about the ‘problem of difference’ is without foundation. When the Government enact the legislation that they propose – which will define marriage, for the purposes of solemnisation in a civil context, as a contract between persons of opposite or different sexes – it will leave canon law completely untouched. The Church of England will be able to retain their canon law on heterosexual marriage, and the Quakers will not be able to amend their marriage regulations to permit same-sex marriage.

        Will there be a challenge under the Human Rights Act/European Convention on Human Rights to argue that the difference between marriage in civil and religious contexts amounts to discrimination under Articles 12 and 14? Yes, there probably will be. Will this challenge succeed? I believe not, because the UK Government will argue that its legislation is designed to respect the rights and freedoms of religious believers under Article 9 (of course, the Government would strengthen its case if it produced legislation that gave religious organisations, like the Quakers, the right to opt in or out of same-sex marriage).

        I am afraid that if you want a unitary legal approach to marriage then we will have to follow Martina’s suggestion above and withdraw the right for any religious organisation to formalise marriage. I would very much support Martina’s idea and think it would produce, as she says, true equality in marriage. But to do that, the Government would have to pass legislation that undid all of the accommodations that the state has made to religious usages since 1534. It will not do that, but will leave canon law intact. If you are a member of the Church of England who is against same-sex marriage you could interpret this as a sign that the Government wishes to perpetuate a legal system in which religious organisations get to decide the ‘who, when and how’ of marriage on their own premises. If you are a member of the Church of England (or any other religious organisation) and are in favour of same-sex marriage you might argue that the Government is depriving you of the right to decide the ‘who, when and how’ of marriage on your own premises. But what neither side can argue is that the Government is vandalising or rewriting canon law.

    3. Imagine if changes were proposed for British Citizenship, (e.g. that it could be transferred to others by deed) but that the proponents of these changes insisted that it would only affect those of us who are citizens by descent, but not by birth. Could you really expect the law would uphold preventing natives of this country from transferring citizenship by deed?

      These same-sex marriage proposals are using a similarly specious distinction between the means of solemnisation in order to belittle the wholesale impact.

  3. Martina Osterloh says:

    The cleanest sollution to the problem would be to withdraw the power to legally marry anyone from ALL religious bodies and reserve them to the state alone. If people wish to be married in the eyes of the religion of their choice, then they can do so at an additional ceremony, but only the registrar (and therefore the state) should have power to perform the legally binding procedure. That is how it is done in many continental European countries. Such a system treats all religions equally AND would advance the separation of church and state in the UK.

  4. Philip Dorling says:

    I don’t know why this issue is so difficult for people to get their heads around…..Currently there is one type of ‘marriage’ in the UK… can be formalised in a church or in a registry office. If the government progress ‘equal’ marriage something new emerges…..civil marriage……they want to say that it is the same as religious marriage…. but also in some way different. Unfortunately the European Court for Human rights will not live with this sort of fudge…..for them the new thing will either be marriage or not! (and I agree with their logic even though as a Christian I am against same sex marriage). The simple way round this is to call the ‘new thing’ something else….how about ‘civil partnership’?……an old idea which makes me realise that we should not be having this debate at all……(P.S in this secular age why not extend Civil Partnership to heterosexuals?)…..

    1. Steve H says:

      ‘…as a Christian I am against same sex marriage’

      Many Christians are in favour of same-sex marriage because it commits the couple to lifelong fidelity and also because it celebrates marriage as an institution.

      The ideal promoted by Jesus and later, Paul, is for lifelong celibacy for all Christians with marriage being second best.

  5. this summary of the original CofE press release and response may be useful

  6. Michael says:

    Wouldn’t it be simpler to just remove the spooky and ridiculous ‘Lords Spiritual’ from Government completely ?

  7. David says:

    If I follow your argument correctly, it relies upon a distinction between civil & religious marriages (& not simply between civil & religious wedding ceremonies). Is this correct? Whilst the difference between the respective civil & religious ceremonies is commonly recognised, I was not aware of any difference in church or civil law between the statuses of church & civil married couples.

    If you are correct in this distinction, then does it not follow that the church should not recognise civil marriage?

    1. Paul Johnson says:

      That is correct, David. Marriage is a civil institution which is governed by common and statutory law. English law distinguishes between marriage in respect of where it is contracted: either in a civil context (e.g. registry office) or religious one (e.g. church). In each context the state effectively empowers officials (civil and religious) to perform the function of marrying couples and, although these take different forms according to the context, the outcome is the same: two opposite sex people become married. Under the Government’s proposals new statutory legislation would be created to allow civil marriage to take place between same-sex couples in civil contexts. It would not require any change in the context of marriage that takes place on religious premises where, at the moment, marriage law is in harmony with canon law (canon law being the ‘ideas’ and ‘rules’ of the CoE). Distinctions in the legal arrangements for marriages contracted in religious and civil contexts are common. They’re what allows a CoE church to refuse to marry a couple who have already been married and are divorced; and what entitles that same couple to marry in a registry office. In other words, statutory law respects the canon law and will continue to do so. The CoE will not be required to change its canonical position and marry same-sex couples.

  8. John says:

    It’s worse than this because the govt is capitulating to the COE by preventing all religious groups from conducting gay marriages in their places of worship. There are a number of religious groups, including Christians, who do recognise gay marriage. So much for freedom of religion. It is time for disestablishment to take place.

  9. Geoffrey says:

    The learned Judge in P & L (Minors), Re [2011] EWHC 3431 (Fam) (20 December 2011) said, “. . . in a case like this we are in what is still new territory in defining the roles of the various parties in the context of parenting.”
    It will be necessary to have simple words to describe the relationships that may arise. Why not “marriage” for the formalised male – female instance and something else for other combinations?

  10. Paul Crofts says:

    Isn’t canon law the Christian equivalent to sharia law within Islam?

    1. Geoffrey says:

      I believe that Shari’a has a wider application across all aspects of life.

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