The Statement of Pastoral Guidance on Same Sex Marriage was issued by the House of Bishops of the Church of England on 15 February, following its meeting after the February General Synod. Comprising the appendix to a pastoral letter from the Archbishops of Canterbury and York addressed to the clergy and people of the Church of England, the Statement is headed “The Church of England and the Marriage (Same Sex Couples) Act 2013” and addresses five issues: the Church of England’s teaching on marriage; the effect of the Marriage (Same Sex Couples) Act 2013; access to the sacraments and pastoral care for people in same-sex marriages; acts of worship following civil same-sex weddings; and clergy and ordinands.
The Statement should be read in conjunction with the House of Bishops Pastoral Statement on Civil Partnerships of 25th July 2005, which covers the same basic issues: the Church’s Teaching; the effect of the legislation; the blessing of civil partnerships; those wishing to be in ordained ministry and to register a civil partnership; and lay people who register civil partnerships.
These two documents are of primary importance since they set out Church policy in these areas, to which might be added GS Misc 1044, Choosing Bishops – Equality Act (Revised), (8 June 2013), prepared by the Church’s Legal Office for members of Crown Nominations Commissions and diocesan bishops and their Advisory Groups in relation episcopal appointments.
Other statements have been made the House of Bishops and the College of Bishops on these issues: civil partnerships and same-sex relationships (1 July 2011); issues raised by the Pilling report (27 January 2014), as well as Men and Women in Marriage and the Pilling Report itself, but these are essentially progress statements, statements of intent to undertake a particular course of action or deliberative documents rather than policy statements.
Ecclesiastical and Secular Legislation
GS Misc 1044 (as revised 2013) describes the relationship between the Church’s teaching on human sexuality and the Equality Act 2010 (in the context of episcopal appointments),
“24. It is generally unlawful under the Act to treat a candidate for appointment to an office falling within its scope less favourably than other candidates because of the protected characteristics relating to sexual orientation or civil partnership. But the Act allows Churches and other religious organisations to apply a requirement related to sexual orientation (for example, in relation to sexual conduct) or a requirement not to be in a civil partnership, where that requirement is applied in order to give effect to the non-conflict principle.
25. A person’s sexual orientation is, in itself, irrelevant to their suitability for episcopal office or indeed ordained ministry more generally. It would, therefore, be wrong if, during the consideration of a nomination to a diocesan see by the CNC or the selection process for a suffragan see, account were taken of the fact that a candidate had identified himself as of homosexual orientation.
26. The Church of England’s teaching in relation to same-sex relations and, more recently, civil partnerships can be found in the General Synod motion of 1987, the House of Bishops’ teaching statement of 1991, Issues in Human Sexuality, Resolution I.10 of the Lambeth Conference 1998, and the House of Bishops’ Pastoral Statement of 2005 on Civil Partnerships. These make it clear that someone in a sexually active relationship outside marriage is not eligible for the episcopate or, indeed, other ordained ministry.
The 2011 version of this guidance, GS 992, also included the statement
“22, There is, by contrast, no corresponding statement of the position of the Church of England that declares that a celibate person in a civil partnership cannot be considered for appointment as a bishop.”
With regard to this last point, however, it could be argued that the situation is different for clergy in same-sex marriages, since same-sex marriage is contrary to Church doctrine. Nevertheless, it appears as though the implementation of the Bishops’ Statement will not contravene the discrimination provisions of the Equality Act 2010.
The House of Bishops’ Statement
The quasi-legislative nature of the House of Bishops’ Statement is problematic, for whilst the Statement does not have the force of canon law (compared with a Canon or Measure, for example) and may not be regarded as one of the “laws ecclesiastical” in the context of the Clergy Discipline Measure 2003, as amended, (CDM), it unambiguously affirms Church doctrine in this area, albeit with persuasive authority. This is evident in its application to two (of the three) particular areas it identifies as requiring “some guidance … on the implications of the new legislation in relation to our common life and ministry in England”.
Acts of worship following civil same sex weddings
Although the recent Statement indicates that
“20. The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships”,
the position was by no means clear, as explored in the Revd Gavin Foster’s guest post on the Fulcrum site Church Services after a Civil Partnership Registration: What is and is not permitted? 
However, it continues [our emphasis]:
“20. The College made clear on 27 January that, just as the Church of England’s doctrine of marriage remains the same, so its pastoral and liturgical practice also remains unchanged.
21. The same approach as commended in the 2005 statement should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church’s teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways“.
This is consistent with the Findings and Recommendations of the Pilling Report, [page 151], although Pilling refers to public not private services, and the HoB (2005) to authorized public liturgy.
“16. We believe that there can be circumstances where a priest, with the agreement of the relevant PCC, should be free to mark the formation of a permanent same sex relationship in a public service but should be under no obligation to do so. Some of us do not believe that this can be extended to same sex marriage. (Paragraphs 120, 380–3).
17. While the Church abides by its traditional teaching such public services would be of the nature of a pastoral accommodation and so the Church of England should not authorize a formal liturgy for use for this purpose. The House of Bishops should consider whether guidance should be issued”. (Paragraphs 118, 384–8, 391–3).
Clergy and ordinands
This area is the most problematic since it raises the question of how the Church would address potential challenges. Underpinning the Statement is the Church’s doctrine on marriage, and in relation to clergy and ordinands it states, [emphasis in original],
“26. Getting married to someone of the same-sex would, however, clearly be at variance with the teaching of the Church of England. The declarations made by clergy and the canonical requirements as to their manner of life do have real significance and need to be honoured as a matter of integrity.
27. The House is not, therefore, willing for those who are in a same-sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same-sex marriage, given the need for clergy to model the Church’s teaching in their lives.
28. … at ordination clergy undertake to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it.‘ We urge all clergy to act consistently with that undertaking”.
Although clergy are subject to canonical obedience, the term
“has become incomprehensible to many, including some of those who are expected to require it. . . [I]t is unclear that [ecclesiastical legislation] could ever be enforced in a way which would carry conviction and set a reliable precedent”.
Since adherence to Bishop’s Statement has doctrinal implications, this could be addressed through the Ecclesiastical Jurisdiction Measure 1963, although any judicial action that is deemed necessary is more likely to involve the Clergy Discipline Measure 2003 for which, under section 8, disciplinary proceedings may be instituted against any archbishop, bishop, priest or deacon alleging any of the following acts or omissions—
(a) doing any act in contravention of the laws ecclesiastical;
(b) failing to do any act required by the laws ecclesiastical;
(c) neglect or inefficiency in the performance of the duties of his office;
(d) conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.
of which (d) would appear to be the most relevant ground, as intimated by Dr Croft, below.
The effect of the Marriage (Same Sex Couples) Act 2013
This third area raises no particular problems in law. However, the LGB&TI Anglican Coalition criticizes its“heavy-handed and legalistic imposition of discipline”:
“[t]hose same-sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments”,
“[w]hile these iron exclusions are in place it is simply ludicrous to speak of the Church ‘Welcoming’ lesbian, gay bisexual, transgender and intersex (LGB&TI) people, or to pretend that this statement is in any sense ‘pastoral’”.
During an interview on Radio 4’s Sunday programme on 16th February the Bishop of Sheffield, the Rt Revd Dr Steven Croft, was pressed on what penalties gay clergy might face if they married under the secular same-sex marriage legislation. The interview with William Crawley 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 …
 This is explored in much greater detail in Gavin Foster’s LLM (Canon Law) dissertation Clerical Disobedience of Canon Law in the Church of England,  Cardiff University.
 G L Bray, The Oath of Canonical Obedience (London: The Latimer Trust, 2004).