Oxon Ad Clerum: Bishops’ Pastoral Statement

On 26 February, the Diocese of Oxford published a letter from the Bishop, Rt Rev John Pritchard, Bishop of Oxford, to the clergy in the Diocese on the recent Statement by the House of Bishops on same-sex marriage. Unlike the Ad Clerum of other bishops, such as that of the Bishop of Lincoln which are primarily for information and seeking comments and opinions on the Statement, that of the Bishop of Oxford provides valuable insights to the thinking behind it, the next steps to be taken by the Church, and the approach adopted within his own diocese.

Given the pervading tl;dr culture[1], many will be tempted to rely upon summaries of the letter. However, as observed by another blogger, “secondary comment is no substitute for primary cognisance” and we would urge that it is read in toto.  Nevertheless, from our point of view, the main parts we picked out were [emphasis in original]:

“It was never going to be likely that the House of Bishops would change two thousand years of teaching during a day in February at Church House Westminster.

“The longer conversation is one on which David Porter, the Archbishop’s Adviser on Reconciliation, is to give advice in three or four months, having worked on the task with a well-chosen group.

“I also know that many will be reluctant to examine the biblical material yet again. But the Bible is our core authority and issues of both exegesis and hermeneutical method are crucial. Let me be absolutely honest here. I don’t expect that many people will change their mind through this biblical exploration.

“What I do very much hope, however, is that we can get to a point where we can respect the integrity of the biblical interpretation of others. I hope we can come to understand deeply why others take a different view, and to respect that conviction even though we disagree, perhaps profoundly. None of us is taking a cavalier attitude to biblical authority, but thoughtful, honest people can thoughtfully, honestly disagree.

“The task then becomes twofold: to discover how much we can agree on, and to learn how to disagree well on what we can’t agree on. Archbishop Justin often uses that phrase ‘disagree well’. So then the third question becomes whether we want to affirm that spectrum of honest belief or detach ourselves from it.

“I’m sorry that the attempt by the House of Bishops to hold the ancient borders
while the conversation goes on has proved so divisive in itself. The train crash was probably inevitable; the only question was when, where and involving how many. But be sure of this – there will be no witch-hunts in this diocese. We are seeking to live as God’s people, in God’s world, in God’s way. And we do that best as we stand shoulder to shoulder and look together at the cross, and at its heart see an empty tomb.”

Comment

From a legal point standpoint, the issues arising from the House of Bishops’ Pastoral Statement are: the sanctions, if any, that are applied to clergy who enter into same-sex marriage after 29 March 2014; and the blessing of civil partnerships and same-sex marriages.  In addition, there has been uncertainty on how the discussions initiated by the Pilling Report will be progressed over the next two years.  As we have noted earlier, it would be unusual if Bishops were any more specific in relation to sanctions than the Bishop of Sheffield, the Rt Revd Dr Steven Croft was when interviewed by William Crawley on Radio 4’s Sunday programme on 16 February.  However, Bishop John’s assurance that there will be no “witch hunts” will provide a degree of reassurance to those within the Oxford Diocese. 

Furthermore, he reiterated his position regarding the blessing of civil partnerships within the Diocese,

“As you will know from my statement on the website in December 2012 I have been very happy to affirm civil partnerships as a positive development which gives same-sex couples the same rights and responsibilities as heterosexual couples. As that statement says, such relationships ‘are capable of the same level of love, permanence and loyalty as marriage, and I believe God delights in such qualities’.”

but with regard to same-sex marriage, he added

“[n]evertheless I believe that to say that civil partnership is the same thing as marriage is a category confusion … I have therefore looked for different ways of recognising two different patterns of relationship. I realise that that puts me at odds with most people on both ‘sides’ of the argument! And society has largely gone past that argument now anyway. The issue has become same-sex marriage, though some may still want to opt for a form of civil partnership.

“So where do we end up? That’s just the point – we don’t know.”

The problem is that the 29 March is fast approaching, and there may be clergy who are prepared to force the issue, so the Church as a whole needs to make up its mind soon.

On the final post-Pilling point, Bishop John’s letter states that this will be taken forward by David Porter, the Archbishop’s Adviser on Reconciliation, who will give advice in three or four months, having worked on the task with a well-chosen group. This is probably an obvious way forward given David Porter’s role, but the news may come as a surprise to many, whilst others will question “why three or four months?”


[1] “too long, didn’t read”.

George Herbert on clergy and the law

Today being the commemoration of George Herbert in the Anglican Calendar I thought (for no better reason than that he is one of my heroes) that it might be instructive to look at what he had to say in The Country Parson about going to law:

The Parson’s Completenesse

The Countrey Parson desires to be all to his Parish, and not onely a Pastour, but a Lawyer also, and a Phisician. Therefore hee endures not that any of his Flock should go to Law; but in any Controversie, that they should resort to him as their Judge. To this end, he hath gotten to himself some insight in things ordinarily incident and controverted, by experience, and by reading some initiatory treatises in the Law, with Daltons Justice of Peace, and the Abridgements of the Statutes, as also by discourse with men of that profession, whom he hath ever some cases to ask, when he meets with them; holding that rule, that to put men to discourse of that, wherin they are most eminent, is the most gain full way of Conversation.

Yet when ever any controversie is brought to him, he never decides it alone, but sends for three or four of the ablest of the Parish to hear the cause with him, whom he makes to deliver their opinion first; out of which he gathers, in case he be ignorant himself, what to hold; and so the thing passeth with more authority, and lesse envy. In judging, he followes that, which is altogether right; so that if the poorest man of the Parish detain but a pin unjustly from the richest, he absolutely restores it as a Judge; but when he hath so done, then he assumes the Parson, and exhorts to Charity.

Neverthelesse, there may happen somtimes some cases, wherein he chooseth to permit his Parishioners rather to make use of the Law, than himself: As in cases of an obscure and dark nature, not easily determinable by Lawyers themselves; or in cases of high consequence, as establishing of inheritances: or Lastly, when the persons in difference are of a contentious disposition, and cannot be gained, but that they still fall from all compromises that have been made. But then he shews them how to go to Law, even as Brethren, and not as enemies, neither avoyding therfore one anothers company, much lesse defaming one another”.

I’m not sure that its any longer a brilliant idea for even legally-qualified clergy to dispense free legal advice unless they are currently practising – and, if they are, their partners might not be too keen on them doing so in any event. But, ostensibly at least, life was very different in George Herbert’s day, when the parish priest might be the only decently-educated person in the parish – and, if he was one, almost certainly the only graduate. (Or was it? Perhaps things have come full circle: there are inner-city areas where the clergy – and not just those from Churches with a parish system – are still the only educated professionals in the neighbourhood because they live over the shop.)

Various thoughts occurred on re-reading the extract from The Country Parson.

First, what Herbert seems to have been advocating was something like lay arbitration or an informal version of the lay magistracy – but in civil matters rather than criminal.

Secondly, one of the areas in which the church courts in England and Wales operated was probate of wills and testaments not involving freehold property – the latter restriction because testators were not normally free to devise real property: see Javier Martinez-Torrón: Anglo-American law and canon law: Canonical roots of the common law tradition (Berlin: Duncker & Humblot GmbH 1998 at 41). This persisted until the entry into force of the Probate Act 1858. So what Herbert was proposing was a procedure that was still within the aegis of the Church but without the expense and formality of a consistory court.

Thirdly, his proposal was by no means revolutionary. In From Cranmer to Sancroft (London: Hambledon-Continuum 2006 at 71) Patrick Collinson notes that:

“.. in some places the parson’s peacemaking role was formalised as an extra-curial mechanism for ending quarrels. At [Bernard] Gilpin‘s Houghton, for example, but after Gilpin’s time, it was agreed that all controversies should be formally referred to the arbitration of some of the chief inhabitants and of the parson, who was to be universal ‘umpire'”.

And finally, Herbert’s advice from the mid-seventeenth century remains pretty sound: try to settle your differences amicably; don’t go to law if you can possibly avoid it; but if there’s no avoiding the courts, at least try not to personalise things. (The current edition of Quaker Faith & Practice still contains an advice from 1833 of which George Herbert would no doubt have heartily approved: that “it would be well that Friends were at all times ready to submit their differences, even with persons not of our religious persuasion, to arbitration, rather than to contend at law”.)

Prenuptial agreements, the Church and the Law

On Thursday 27 February, the Law Commission is to publish its report on matrimonial property, needs and agreements which is based upon a project and an associated consultation initiated in October 2009 with the objective of examining the status and enforceability of marital property agreements.  In February 2012, the project was extended to address the financial provision arising on divorce and the dissolution of a civil partnership. This was accompanied by a supplementary consultation in September 2012.

The project examined the extent to which one spouse or civil partner should be required to meet the other’s needs following divorce or dissolution.  It also considered “non-matrimonial property”, a concept used by the courts to describe property that was acquired by either party prior to the marriage or civil partnership, or received by gift or inheritance at any time.  The background to the project and the issues considered is reported in an article by Law Commissioner, Professor Elizabeth Cooke, the Law Commissioner, [2012] Fam Law 323.

Although the work has prompted media speculation that “Prenup deals could be given legal status”, here, and religious concerns that “Prenup laws ‘would hit marriage’”, here, it is important that the proposals are considered in relation to: the likelihood of them becoming law; and the present status of the law in this area following the Supreme Court judgement in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, a useful summary of which is given in the Supreme Court Press Summary.  There has also been a timely, but unconnected, post from canon lawyer Dr Ed Peters, A Catholic look at pre-nuptial agreements, who suggests: “the Church’s opposition to divorce is more nuanced than most people realize; the Church herself has made and still makes use of pre-nuptial agreements (though under different titles); and, like any contract ,the morality of a pre-nuptial agreement eventually comes down to its terms, not its literary form”.

The Law Commission and the development of the law

Established by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law[1], the Law Commission is an advisory non-departmental public body, (NDPB) of the Ministry of Justice.  The Commission’s powers include advising the Minister, who is required to lay its reports before Parliament. However, more than two-thirds of its law reform recommendations have been implemented, and a number await the Government’s decision or Parliamentary time, here.

Against this background, tomorrow’s report is only a preliminary step towards changing the law in this area.  Another area related to the financial consequences is the Commission’s Report Cohabitation: The Financial Consequences of Relationship Breakdown (Cm 7182), on which we commented here, which although published in 2007 is still classified as “pending”.

Radmacher (formerly Granatino) v Granatino

In Radmacher Lord Philips considered the development of three types of “nuptial agreement”: agreements made before the marriage, (“ante-nuptial ” or “pre-nuptial agreements”); those made after the marriage had taken place where the husband and wife intended to remain together, (“post-nuptial agreements”); and post-nuptial agreements made when the couple was on the point of separating or had already separated, (“separation agreements”).  Until the introduction of the Maintenance Agreements Act 1957, it was regarded as contrary to public policy for a couple to enter into a ante- or post-nuptial agreement relating to a potential separation, since “this might encourage them to do so”, and as a consequenc the court paid no regard to them. However, in contrast to ante-nuptial agreements, the 1957 Act gave considerable weight to separation agreements and postnuptial agreements.

Lord Philips noted that the reasons for sweeping away the old rule for separation agreements applied equally to ante-nuptial agreements [52] as there was not necessarily a material difference between the two [57] and the court was entitled to overrule the agreement in either case [63]. The question before the court, therefore, was how it should approach the task of deciding what weight should be given to an ante-nuptial agreement.  In the instant cases there were three issues to consider:

– were there circumstances attending the making of the agreement which should detract from the weight which should be accorded to it?

– did the foreign elements of the case [i.e. although the marriage took place in London, the ante-nuptial agreement was signed before a notary in Germany, where such agreements are binding] where enhance the weight that should be accorded to the agreement? and

– did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement?

Applying these principles to the facts, the Supreme Court held that the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold the husband to the agreement.

In a dissenting judgement, Lady Hale stated that modern marriage still possesses an irreducible minimum, which includes a couple’s mutual duty to support one another and their children. The issue in this case was how far individuals should be free to rewrite that essential feature of the marital relationship as they chose [132]. In her view, there remained important policy considerations justifying a different approach for agreements made before and after a marriage [162]. The test to be applied by the court when considering an ante-nuptial agreement should not introduce a presumption or starting point in favour of holding the parties to it: the guiding principle should be fairness in the light of the actual and foreseeable circumstances at the time when the court comes to make its order [169].

Following Radmacher there have been a number of cases in which its principles have been applied to the individual facts of the cases, including: Z v Z (No2) [2011] EWHC 2878 (Fam); V v V [2011] EWHC 3230 (Fam); Kremen v Agrest (No.11) (Financial Remedy: Non-Disclosure: Post-Nuptial Agreement) [2012] EWHC 45 (Fam); B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam); GS v L [2011] EWHC 1759 (Fam). However, it has been suggested that greater legal certainty is required; “by bringing quasi-contractual concepts into this area of the law but not applying the law of contract itself, and in referring to concepts such as ‘real need’ and ‘full appreciation’ the Supreme Court has set lower courts something of an interpretative challenge for a number of years hence”.

Churches and prenuptial agreements

The Church of England’s statement Pre-nuptial and post-nuptial agreements acknowledges that “relationship breakdown remains a significant phenomenon and that financial and property disputes between separating couples can lead to distress and expense for all involved and that clarification is needed about the place and legal status of marital agreements”. However, “although [i]t will study the Law Commission’s proposals carefully and issue a fuller response in due course, [it is] concerned about the principle of marital agreements and the implications for marriage should they be more widely accepted. In a Christian understanding of marriage agreements of this kind would weaken and dilute our marriage vows of lifelong commitment”.

The Roman Catholic Bishop of Shrewsbury, Rt Rev Mark Davies, is quoted as saying that actively encouraging couples to prepare for the possibility of separation before they are even married would turn promises at the altar into little more than a “provisional” agreement. “It is a legal provision which would surely empty the words of the marriage promise for “better for worse … to love and to cherish till death do we part” of all meaning.

Comment

There is a clear divergence of opinion between the churches’ view of ante- and post-nuptial agreements and that of the courts, but the issue now appears to be whether the principles set down in Radmacher should be further developed and enshrined in statutory legislation. Perhaps the last word should go to the Court’s Press Summary of Radmacher in which it observes “[t]he law of marital agreements is in a mess and ripe for systematic review and reform”, on which there would appear to be general agreement.


[1] This does not include the law of Scotland, for which there is a separate Commission, or any law of Northern Ireland which the Parliament of Northern Ireland has power to amend.

Same-Sex Marriage – Update

Register Office Marriage

Further to our December post Same-Sex Marriage from 29th March 2014? commencement dates of 21 January, 13 March and 3 June have now been set by the Marriage (Same Sex Couples) Act 2013 (Commencement No. 2 and Transitional Provision) Order 2014 for three groups of provisions within the 2013 Act.  Important for those seeking an early opportunity to marry is paragraph 3 of the Order which inter alia brings into force section 3 of the Act. This permits notice of same-sex marriage to be made from 13 March, and therefore the earliest date on which marriage may take place will be Saturday 29 March.  Details of the procedures involved are explained on the government web site here, which states that in addition to the required 16 day notice period, the couple must have lived in the registration district “for at least the past 7 days”.

Registration of Buildings and Appointment of Authorised Persons

Also coming into force on 13 March are the Marriage of Same Sex Couples (Registration of Buildings and Appointment of Authorised Persons) Regulations 2014, SI 106 which make the appropriate changes to the 1949 Marriage Act in relation to procedures for the registration of buildings within which same-sex marriages may take place, and the appointment of authorised persons to be present at the solemnization of  marriages in registered buildings when no registrar is present.

Additional provisions relate to religious buildings shared by more than one religious organisation for marriages of same-sex couples. The government response to the consultation relating to shared buildings is published here, and the Draft Marriage of Same Sex Couples (Registration of Shared Buildings) Regulations 2014 are to be discussed under the affirmative resolution procedure by the Delegated Legislation Committee today, 25 February.

Other Marriage Venues

Other venue-related Regulation to be discussed by the Committee are: Draft Consular Marriages and Marriages under Foreign Law Order 2014; Draft Marriage of Same Sex Couples (Use of Armed Forces’ Chapels) Regulations 2014; and Draft Overseas Marriage (Armed Forces) Order 2014.

The Committee will also consider: Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014; Draft Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014.

As we noted in our weekly round-up, the knock-on effects of changing the legal concept of marriage within the 2013 Act have resulted in: 56 consequential amendments to subordinate legislation and the 9 consequential amendments to Welsh subordinate legislation and changes to 36 items of primary legislation.

Religion and law round up – 23rd February

A surprisingly busy week, given that neither Parliament nor the General Synod was in session

ASBO on Muslim street preacher

The Guardian reported that a Muslim convert who targeted members of the public as part of a campaign for a sharia state in the UK has been made the subject of an ASBO. In what the item described as a “legal first”, Jordan Horner, from Waltham Forest, has been ordered to stop preaching in public. The ASBO will run for five years and be effective throughout London. The Metropolitan Police said that Horner was thought to have distributed leaflets and posters advertising a “sharia controlled zone” in Waltham Forest.

Whether or not this is, in fact, a “legal first” we have no way of knowing for certain. We hope, however, that the story will give some reassurance to those Churches who expressed concern that the provisions of the Anti-social Behaviour, Crime and Policing Bill, currently in its final parliamentary stages, would interfere with activities such as street preaching and open-air services. The Salvation Army is particularly concerned about this, for obvious reasons – but if the Horner ASBO is a first, then it’s a very long way from advocating “sharia controlled zones” to open-air hymns and band music.

Is “doctrine” justiciable?

On Wednesday and Thursday the Supreme Court heard oral argument in the appeal from Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983. The case concerns the powers to appoint and remove trustees of two Sikh gurdwaras and hinges on a matter of what might be termed “ecclesiastical succession”. The principal question before the Court, was this: “whether the proceedings unavoidably raise non-justiciable issues of religious belief, doctrine and practice”.

There is a long line of decided cases suggesting that the courts will not adjudicate matters of doctrine, so the judgment is going to be extremely important whichever way it goes. Watch this space…

Niqabs in court – again

Late last week a report surfaced of a judgment by the Upper Tribunal (Immigration and Asylum Chamber) in an asylum case, AN v Secretary of State for the Home Department [2014] UKAITUR DA013242013, which was handed down on 15 January and published on 11 February. (Either it was late appearing BAILII or we simply missed it.) In coming to its decision the FtT had, in effect, ignored the evidence of a witness who was wearing the niqab and, as we noted, the Upper Tribunal was quite hard on the FtT’s determination, holding that its failure to deal adequately with a veiled witness vitiated its determination. The UT’s full determination is well worth reading.

Tougher sanctions against clergy who marry their same-sex partner?

Following some of the reaction to the House of Bishops’ Statement of Pastoral Guidance on Same Sex Marriage, this week’s Question of the Week in the Church Times is

Should there be tougher sanctions against clergy who marry their same-sex partner?

on which we have posted our comments.  It may be interesting to see the results of this CT question, but although earlier questions have revealed definitive opinions[2] within the readership, these are based on relatively few responses compared with its circulation of 34,000:

Would you alter your lifestyle to fight against climate change? – Total: 98   Yes: 85.7%   No: 14.3%

Do you trust the leadership of the General Synod? – Total: 117   Yes: 33.3%   No: 66.7%

Is numerical growth a priority in your church? – Total: 166   Yes: 64.5%   No: 35.5%

Progress on the Marriage (Same-Sex Couples) Act 2013

In our December post Same-Sex Marriage from 29th March 2014? we examined the progress towards the implementation of the Marriage (Same Sex Couples) Act 2013. Today’s Thinking Anglicans post Progress on implementing the Marriage (Same Sex Couples) Act provides an update with links to a second Commencement Order and a raft of secondary legislation laid before the House on 23 January, the two under the negative resolution procedure having been approved and four under the affirmative resolution procedure to be discussed in the near future.  Other provisions are still “in the pipeline”.

The knock-on effects of changing the legal concept of marriage within the 2013 Act are evident in: 56 consequential amendments to subordinate legislation and the 9 consequential amendments to Welsh subordinate legislation,  Schedules 1 and 2, of The Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 SI 107, now approved; and the 36 items of primary legislation within Schedule 1 to the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014, to be considered by the Delegated Legislation Committee on Tuesday.

Regency and the Monarch

As the anniversary of Pope Benedict XVI’s resignation approaches[1], Bob Morris considers the issues surrounding another position for which resignation seems highly unlikely.  His post The UK Monarchy: Moving to a Regency that dare not speak its name? reviews the increasing role being taken by the Prince of Wales and the “movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner”. Readers are recommended to read the full post which examines the legal and constitutional implications. He concludes

“It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.”

Recent Consistory Court judgment

Situated 7km to the west of Swindon, St Mary, Purton is one of only three parish churches that has both a central tower and spire and a western tower, here. The petition considered in Re St Mary Purton [2013] Bristol Const Ct, Justin Gau Ch. comprised two parts, permission for the installation of a replacement sound system, and for a projector screen in the Grade I church. The former was less contentious once the family of the benefactors of the existing system had been assured that parts would be incorporated in the new arrangements. The latter concerned a boom-mounted projector screen on and behind the front north pillar at the tower crossing, which when not in use would be rolled up and swung back behind the pillar “out of sight”. When in use the projector screen “would act as a barrier, visually and physically, cutting off the High Altar and choir from the rest of the church”. Objections were raised by the Society for the Protection of Ancient Buildings (SPAB) and the Church Buildings Council (CBC). English Heritage chose not to comment.

The Chancellor applied Re St Alkmund, Duffield (2012) 14 Ecc LJ 461-461 and addressed the five questions seriatim:

  • #1: “yes”: “the introduction of this screen is, frankly, jarring in such a lovely interior”;
  • #2: the answer to #1 being “yes”, #2 did not apply;
  • #3: the harm would be “small”;
  • #4: the Chancellor was “just persuaded that there is a justification for carrying out the proposals”; a conclusion supported by
  • #5: “that the public benefit in granting an amount of lawful liturgical freedom, the pastoral wellbeing and the opportunities for growth and mission outweigh the harm that will be done”.

Both parts of the faculty were granted.

Latest Standard Notes from the House of Commons Library

As part of its role in providing impartial information and research services for Members of Parliament and their staff in support of their parliamentary duties, the House of Commons Library produces a range of publicly-available Briefing Papers: Research papers which provide in-depth and impartial analysis of all major pieces of legislation, as well as many areas of policy; and Standard Notes which cover frequently asked questions and topical issues.  Recent publications include:

And finally, posthumous marriage…

Did you know that in France Article 171 of the Code Civile makes it possible in certain circumstances to marry your dead fiancé(e)? Neither did we; but in a speech to the Northern Ireland Medico-Legal Society last week, Lord Wilson JSC explained that, when President de Gaulle visited Fréjus in 1959 after a devastating flood, a girl pleaded with him to be allowed to marry her drowned fiancé and he was so touched that he persuaded the Assemblée Nationale to pass a law to enable her to do so. Apparently about 20 posthumous marriages take place in France every year on the basis that the applicant was genuinely engaged to the deceased and that the deceased’s parents still approve of the marriage.

But Lord Wilson’s lecture is well worth reading for much more important reasons than that: his elegant and learned exposition of the history of the formation of marriage in the UK and abroad and his explanation of why marriage as a socio-legal construct has changed over time.


[1] Although the Pontiff announced that he would be stepping down on the morning of 11th February 2013, his actual resignation was effective from 20:00 CET 28th February 2013

[2] To prevent multiple voting, readers must be logged in, an essential precaution given the number of respondees.

Tougher sanctions against clergy who marry same-sex partner?

The on-going controversy following the publication of the House of Bishops Statement of Pastoral Guidance on Same Sex Marriage continued with the publication of two pieces in the Church Times: Bishops’ same-sex-marriage statement provokes anger and defiance; and Disobedient clergy risk rebuke. In addition to these, the CT posed as its “Question of the Week”: Should there be tougher sanctions against clergy who marry their same-sex partner?

Comment

One suspects that many readers will view this question in the light of the latter article which suggests that

“The maximum penalty for a first offence … is a rebuke[1]. Since a priest is unlikely to enter a gay marriage more than once, he or she might have relatively little to fear.”

However, the article also states

“the consequences for clergy who defy the guidance on same-sex marriage are unlikely to become clear until a test case is brought”,

echoing our own thoughts.  The Archbishop Cranmer blog suggests

“it is not what Canon Law prohibits in theory but how the bishops handle disobedience in practice which will determine and define the Church’s theology on same-sex marriage”.

But how will the bishops handle this? It is worthwhile reiterating the comments of the Bishop of Sheffield, the Rt Revd Dr Steven Croft when interviewed by William Crawley on Radio 4’s Sunday programme on 16th February. The interview concluded:

[…]

SC  We said the House of Bishops considers it would not be appropriate conduct for somebody in holy orders to enter into a same-sex marriage given the need for clergy to model the Church’s teaching in their lives and to live by that and we would hope that clergy would respect that advice and guidance. I would strongly suggest and all the bishops would prefer to have conversations with people initially if they are contemplating going further than that and we would not want to …

WC  You’re hoping not to have a standoff but Colin Coward says there are some challenges coming down the pipeline.

SC  We’ll need to meet those as we meet them. And it’s really hard to predict exactly what they will be and how they will be shaped because it’s hard to predict the particular circumstances …

Since then, there have been a number of public statements by bishops and these are being followed on Peter Ould’s blog. To date  they have included Norwich, Guildford, Oxford and Lincoln It would be unusual if these had been any more specific than Steven Croft, but Changing Attitude reports that the Bishop of Blackburn has approached clergy in his Diocese who have been open about having civil partnerships. Madeleine Davies’ article in the Church Times lists some of the potential challenges to the Bishop’s Statement, both in relation to same-sex marriage within the clergy and churches which are openly offering blessings after same-sex marriage and civil partnership ceremonies.

Our views of the legal issues involved appear to be in accord with those of the Revd Will Adam, editor or the Ecclesiastical Law Journal, reported in the Church Times article, i.e. the Church appears to be on “pretty safe ground” with regard to equality legislation; although clergy are subject to canonical obedience, the term is ill-defined and would be difficult to enforce; doctrinal offences fall within the Ecclesiastical Jurisdiction Measure 1963 although recourse to the Court of Ecclesiastical Causes Reserved is seldom pursued; and, a case might be brought under the Clergy Disciplinary Measure.  These last two options provide a range of possible sanctions.

Given the range of options potentially open to the CofE and the uncertainties involved in each, our answer to “Should there be tougher sanctions against clergy who marry their same-sex partner?” would be “tougher than what?”. In the meantime we will be re-reading the CDM, the Code of Practice and Other Guidance, and Adrian Iles’ article in the Ecclesiastical Law Journal, [2007] 9 Ecc LJ 10–23.

Postscript

A detailed consideration of the application of the Clergy Discipline Measure to same-sex marriage within the clergy is given in Philip Jones’ post Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?


[1] The wording of the CT article is “The maximum penalty for a first offence under this measure is a rebuke”, which from the subsequent text we assumed to refer to the Clergy Discipline Measure 2003, as amended, (CDM). However, it could apply to the Ecclesiastical Jurisdiction Measure 1963.

An error in the House of Bishops’ Guidance on Same Sex Marriage? – perhaps not

In an article posted yesterday on Thinking Anglicans Professor Linda Woodhead, writing in a personal capacity, suggests that it is inaccurate for the House of Bishops to state that

“There will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer” (House of Bishops, 14th Feb 2014, Appendix, para 9).

She points out that Archbishop Randall Davidson stated during the debate on the Deceased Wife’s Sister’s Marriage Bill (which became the 1907 Act) that

“For the first time in the history of the Church of England has the law of the State been brought on one specific point into direct, open, overt contrast with and contradiction of the specific and defined law laid down in the authoritative regulations of the National Church” (Lords Hansard 1907)

She then goes on to suggest that “What to contemporary generations seems an unsupportable divergence between the law of the land and the Church’s teaching on marriage (the BCP’s Table of Kindred and Affinity in this case) seems a storm in a teacup for later generations for whom it is established social fact” and argues that “the fact that the House of Bishops’ statement above is in error matters a great deal”. In response to my suggestion that the two statements were addressing different issues, she responded that what she was addressing was a “change from understanding marriage as an indissoluble bond is a change in the general understanding of marriage”.

It would be pure cheek for me, as a Quaker, to comment on the substance of an internal matter for Church of England but I am not convinced that the statement by House of Bishops “is in error”. The extract quoted by Professor Woodhead is about what it says it’s about: “the general understanding and definition of marriage in England as enshrined in law”; Archbishop Davidson, however, was commenting on “the law of the State” in relation to whom one could legally marry, not on the definition of marriage itself.

The Deceased Wife’s Sister’s Marriage Act 1907 did not change the definition of marriage: what it did do was to remove a particular bar in the Table of Kindred and Affinity. Nor did it have anything to do with the indissolubility of marriage as such because, by definition, the man whose wife had died was free to remarry someone: the issue was whether or not he could marry his wife’s sister.

An anonymous comment on Professor Woodhead’s post pointed out in her support that in Banister v Thompson [1908] Probate 362, Sir Lewis Dibdin, Dean of Arches, said that:

“The recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other.”

But “a distinction between the civil and ecclesiastical aspects of marriage” does not of itself amount to a change in the definition of marriage; and even if one accepts Sir Lewis’s dictum at face value, the fact that the Church of England was opposed to the Act does not alter the fact that the common law definition of marriage in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 at 133 as “the voluntary union for life of one man and one woman to the exclusion of all others” [per Lord Penzance] remained untouched by the 1907 Act. As recently as April 2013 the current President of the Family Division, Sir James Munby, stated in a lecture that “the actual decision in Hyde v Hyde remained good law for over a century”.

The Marriage (Same Sex Couples) Act 2013, on the other hand, certainly does change the definition: see Schedule 3 Part 1 (Interpretation of existing England and Wales legislation):

“1(1) In existing England and Wales legislation—

(a) a reference to marriage is to be read as including a reference to marriage of a same sex couple…”.

So I it is not at all clear, to me at least, that the quotation from the Statement by House of Bishops “is in error” in that respect: it is addressing a different issue from that addressed by Archbishop Davidson. (As to the Statement’s more general sentiments, as I suggested above it is emphatically not for me to comment.)