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.)

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

    • Simon

      It’s certainly not my job to defend the House of Bishops of the C of E but I simply think that this particular criticism is misplaced. The two quotations are about qualitatively-different things, and the definition point is important.

      I simply can’t see what the “error” is – or if there is an “error”, it’s so tiny as not to be worth remarking on.

      Anyway, I’ve had my say and I propose to stop there!

    • Pedant alert – a “petard” is a bomb, typically used to blow up a door or gate. So “hoist on one’s own petard” is to be blown up (the “up” gives us hoisted) by one’s own weapon. This may or may not be a more satisfying image of bishops than simply being hung up on a hook.

  1. Frank, you are being disingenuous now (in the way you have quoted me – trying to make it look as if I am muddling two issues).

    So here is my case at its simplest plus a simple question for you:

    This is not the “first time” there has been 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.”

    Evidence:
    The Church of England enforced a view of marriage as indissoluble long after civil law allowed remarriage of divorcees. E.g. Princess Margaret famously spoke of being: “mindful of the Church’s teaching that Christian marriage is indissoluble.” Not until 2002 did CofE formally accommodate remarriage of a divorced person.

    Do you agree that this constitutes a divergence between civil law & “church’s doctrine reflected in canons and BCP”?
    If yes: then the HoB is in error in saying it is the first time they have diverged.
    If no: why not?

    • Linda

      No, sorry, I don’t think I am being disingenuous. (Or if that is the way it comes across it is certainly not my intention.)

      My problem with your criticism of the passage from the HoB’s Statement that you quote is not the change in policy on remarriage of divorced persons: civil law and Church doctrine certainly diverged and on that you are obviously correct. My problem is the way in which you contrast the two quotations at the beginning of your post. My contention is that the HoB statement and Abp Davidson’s statement are about two different things: the distinction between them is the HoB’s reference to the change in definition.

      As to the HoB’s contention that “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”, though the general legal understanding of marriage in England and the doctrine of the C of E diverged, there was no divergence about definition. Until 2013 the basic definition of marriage both in law and in the C of E’s doctrine continued to be that in Hyde: “the voluntary union for life of one man and one woman to the exclusion of all others”. The 1907 Act did not change that basic definition but the Marriage (Same Sex Couples) Act 2013 has now done so. So I reckon that the HoB’s statement that “There will, for the first time, be a divergence between the general understanding and definition of marriage“ and the C of E’s doctrine of marriage is correct as it stands.

      All this is nit-picking in the extreme: but after the nits have been picked I don’t think that House of Bishops were wrong because the definition has changed – though their position, admittedly, might have been better-expressed.

      Finally, I suspect that there is a basic ambiguity in all this and that I’m reading the HoB quotation in one way and you’re reading it in another. Maybe we must just agree to disagree.

      • Frank, always happy to pick some nits!

        Thanks for clarifying that you agree there was a divergence over remarriage. This alone means the bishops’ statement WAS in error.

        I understand what you are saying about my other example of serious divergence (over deceased wife’s sister), but I can’t agree.

        The ban on marrying a deceased wife’s sister was part of ” the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer” as HoB puts it.

        And after 1907, the civil law diverged from this.

        I still think that contradicts the bishop’s statement that same-sex will be the first time there has been such a divergence.

        You are saying that it doesn’t because the 1907 act doesn’t bear upon the definition of marriage. But – as Simon and Iain say – you are using a narrower definition of marriage than the bishops when they speak of a “general understanding and definition of marriage.”

        So, like Noah’s sons, you’ve tried your best to cover the episcopal fathers’ nakedness, but I think they’re still exposed!

        Anyway, thanks for an interesting exchange.

  2. Frank: I agree with Linda and respectfully disagree with you. The HoB says “understanding and definition”, clearly meaning those nouns to be linked. The Matrimonial Clauses Act 1857 and Deceased Wife’s Sister Act 1907 both changed the definition of the class of people entitled to be married in England & Wales. So the comparison between Abp Davidson and the recent statem,ent seems to me to be exactly to the point.

    • Iain

      Sure: they changed the definition of the class of people entitled to be married but they did not change the definition of marriage itself. And on my reading of the quotation that – the definition of marriage – is what the House of Bishops appear to have meant.

      So I still don’t think that the comparison between Abp Davidson and the HoB statement is valid.

        • Frank, I don’t see how you can say that the class of people you can marry is not part of the definition of marriage.

          I can’t “marry” my brother or mother any more than I can marry a second husband.

          If the definition of the class of people you can marry is not part of definition of marriage, then marriage of man to man or woman to woman would not change our understanding of marriage, surely?

          • Linda

            I suspect that that is the primary difference between us: we are evidently using the term “definition of marriage” in different senses. I mean in it the basic sense of “what is marriage?” – to which the pre-2013 answer is “the voluntary union for life of one man and one woman to the exclusion of all others”: ie, it is a legal relationship that is freely entered into, that is for life (at least in principle), that is monogamous and that is between persons of opposite sexes. You are evidently using it in a much wider sense than I am: I wouldn’t regard the inability to marry one’s brother as part of the definition: clearly you would.

            My assumption is that the House of Bishops was thinking of the definition of marriage in the same terms terms as I was – which (unsurprisingly) seems reasonable to me.

  3. The problem with this debate is that there are three layers to it rather than two. Viewed in strict legal terms, the law of the realm departed from canon law and the Book of Common Prayer when the state recognised marriages which canon law would not or, more strictly, when couples could marry other than in accordance with the BCP order of service. This must have been from at least as far back as 1836, if not before. Points like those made by Professor Woodhead fall into the same category as those who have said that the breach between Christian marriage and civil marriage occurred with the state’s recognition of civil marriage in 1836. However, there is another dimension to this debate which must be recognised.

    The third, and indispensable layer, is that of Scripture – upon which Church of England doctrine and the BCP are professed to be based in Canon A5 of the Canons of the Church of England – and in which light they should be interpreted. The early Church faced a similar situation regarding “civil marriage” and it is instructive as to what was regarded as “marriage” by the Church and what was not. The first principle was that non-believers came to faith and their pre-existing marriages were recognised. This is evident from Paul’s exhortation to the Greeks of Corinth not to divorce their unbelieving spouses (1 Cor 7:12-14). The second principle is that marriage was fundamentally linked to heterosexual sex. This follows from Paul’s warning that men who sleep with female prostitutes become, in some way, one body with them (“as it is written, the two will become one flesh” 1 Cor 6:16) and, interestingly, this is still reflected in the requirement of consummation under English law. The third principle is that nowhere is a sexual relationship between two members of the same sex described as “marriage” either in a positive or negative context.

    It is therefore not possible to appreciate the point being made by Mr Cranmer, without understanding what the House of Bishops mean by “doctrine”. Scripture teaches that there are marriages which are pleasing to God and marriages which are not, but Scripture does not teach anywhere that a relationship between a man and a man or a woman and a woman can be regarded as a “marriage”, whether pleasing to God or not. This is the point which the House of Bishops – and Mr Cranmer – appear to be making.

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    • No: I don’t think that’s correct: the House of Bishops’ statement is about discipline within the Church of England. The internal affairs of the C of E are no more my concern than the internal affairs of the Methodist Church or of the URC.

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  6. But there is also a basic question of semantics here too. Explicitly, the definition of marriage is the lifelong union of one man and one woman. Implicit within ‘union’ is an understanding of sexual consummation and the possibility of procreation.

    Whether or not a widower can marry his deceased wife’s sister, or whether someone whose marriage has been dissolved, is about access to this defined institution.

    To change the definition from ‘one man and one woman’ to ‘one person and another person’ must involve a fundamental change in the meaning of the word ‘union.’

    So the ‘gay marriage’ discussion is NOT simply one of eligibility, as the previous debates were; it does go to the heart of the definition of marriage. That is the point he HoB are making; it is a good one; it is consistently ignored in the media and by lobbyists, since the ‘eligibility’ question is the easiest argument to push, though it is mistaken.

  7. As Prof. Joad might have said, “It all depends what you mean by ‘the general understanding and definition of marriage’ on one hand and ‘one specific point’ on the other.”

    Pre-2013
    Oxford English Dictionary:
    marriage means the formal union of a man and a woman, typically as recognized by law, by which they become husband and wife.

    Post-2013
    OED ?
    marriage means the formal union of two persons irrespective of their sex typically as recognized by law?

    I’m with the House of Bishops.

  8. Christopher: Complete OED (1991 edition): Primary Meaning of “Marriage”: “The Condition of being husband or wife; the relation between married person, spousehood, wedlock” Attested since 1297. Does not need modification to apply to a same-sex marriage. That’ll save money at the printers…

    As to Deceased Wife’s Sister Marriage the grounds of objecting to it was actually Leviticus 18:20. Gay Marriage — the grounds on which people object to it is Leviticus 18:22. Exactly the same Tabu code, 2 verses on.

    It is a redefinition in exactly the same way, for exactly the same reason.

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  10. I think that the point at which the House of Bishops was trying to get was that this will be the first time at which the Church has not regarded as marriages things that the State does regard as marriages. This differs from the Deceased Wife’s Sister’s Act 1907, as is shown by this comment by the then Master of the Rolls in R v Dibdin (1910) Probate 101: ‘the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (at 109).

    The point was that if someone (Mr Banister in the actual case) did marry his deceased wife’s sister then the Church had to regard it as a real marriage, even if it disapproved. In the actual case (discussed excellently at http://ecclesiasticallaw.wordpress.com/2012/05/19/r-v-dibdin/) Canon Thompson refused to recognize it as a real marriage and was disciplined for acting on this refusal. The same goes for remarriage of divorcees with first spouse still living: the Church has to recognize these as valid marriages, even if it thinks them illicit. But the Bishops’ point, as I understand it, is that the same does not go for same-sex marriages: the Church will not recognize them as real/valid marriages at all. So this will be the first time that the State has pronounced a marriage real and the Church demurred.

    • Precisely my point: the two things are qualitatively different. But you explained it much more clearly than I did.

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