by Peter Collier KC, retired Senior Circuit Judge and former Vicar-General of the Province of York
On 15 November 2023, General Synod passed a motion on Living in Love and Faith which acknowledged that we are in a period of uncertainty but, among other requests, asked “the House to consider whether some standalone services for same-sex couples could be made available for use, possibly on a trial basis, on the timescale envisaged by the motion passed by the Synod in February 2023”.
Such a trial period would result in an expectation that if, at the end of it, there was a wish to continue the use of the Prayers, then that would be put through a Canon B2 process.
After much longer than people had hoped for, the House of Bishops has now reached a provisional decision, which they anticipate confirming in December. That decision is that, following advice from the Church of England’s Legal Office and from the Faith and Order Commission (FAOC), such services – now described as ‘bespoke services’ – “would require maximum communal authorisation through the Canon B2 process of approval”.
The recent legal advice (dated September 2025) which has now been published does not differ materially from what previous documents told us was the essence of the legal advice received on earlier dates. Annex F to GS 2328 had said that authorisation through Canon B2 would provide an automatic defence to any legal case brought against clergy for using the prayers. The advice at that time was that, provided the House, exercising its legally and theologically informed judgement, formed the view that the proposed prayers and other material met the requirements as to doctrine that are set out in Canon B5, then they could properly be commended. That was and presumably still is the case, as the use of the prayers in regularly scheduled services remains commended for use under Canon B5.
The role of context
What is of course new is the advice from FAOC. In short, it addresses the issue of the extent to which context and symbolic action communicate what the church believes. FAOC says that when used publicly, and especially when used in bespoke or occasional services, the Prayers may be seen to communicate an ecclesial endorsement of a couple’s relationship as a whole, including its sexual dimension. It says, some would say argues(!), that in public rituals meaning is read as much from what is seen as from what is said. Also, that actions, gestures, and vesture generate strong signals for a variety of audiences looking on. It says that, while explanatory prefaces may help, people will remember the enactment more than the caveat. In conclusion, FAOC suggest that symbolic actions, such as an exchange of rings, will communicate more than the church’s doctrine of marriage will allow.
Notwithstanding that all of that also applies to such symbolic activity in regularly scheduled services – which are to be allowed to continue – the House has provisionally concluded that performance of the same symbolic activity in a standalone service should not take place until authorised by Synod through a B2 process.
The Church of England and civil weddings
Of course this is not the first time that the Church of England has addressed questions around marriage services. In 1836, the Marriage Act challenged the practice of all weddings being conducted only through the Church of England, and introduced what we now call ‘civil weddings’. Weddings conducted in registered buildings other than churches, in the presence of a registrar and two witnesses, were lawful. This was the first time that Parliament provided for people to marry other than through the rites and ceremonies of the Church of England.
The Church was not happy and, in the debate on the bill in the House of Lords, the then-Bishop of Exeter, Henry Phillpotts, said that it was “a disgrace to British legislation. [It] is pretended to be called for to prevent clandestine marriages, but I think it will greatly facilitate such proceedings. Not solemnized by the church of England, may be celebrated without entering into a consecrated building, may be contracted by anybody, and will be equally valid, whether it takes place in the house of God, or in the house of a registering clerk, one of the lowest functionaries of the state. The parties may take one another for better and for worse, without calling God to witness their plighted troth. No blessing sought; no solemn vows of mutual fidelity; no religious solemnity whatever …”. Clearly in his mind this fell far short of ‘Holy Matrimony’ as per the Book of Common Prayer.
Various other developments culminated with the use of a religious service in a register office being prohibited by s.12 of the Marriage and Registration Act 1856. So, more by accident than design, we reached the place where there was a very clear distinction between religious and secular marriages.
Divorce and marriage
However, a much more fundamental issue arising from the different views about marriage held by state and church was that of remarriage after divorce. In 1857, control over divorce passed from the church courts – which had exercised complete control over marriage and divorce since the Middle Ages – to the newly-created Court for Divorce and Matrimonial Causes. Until then, divorce was rare and expensive, requiring in almost all cases an Act of Parliament to bring it about. The grant of divorces by the courts was slowly liberalised over the years, culminating in 1969 with the “irretrievable breakdown of a marriage” being the sole ground for divorce.
Throughout this period, the Church of England remained adamant that marriage was for life and that any remarriage during the former partner’s lifetime amounted to adultery. In 1957, the church not only banned the use of the “solemnisation of holy matrimony” for the remarriage of divorcees but also barred the provision of any public service to mark a couple’s civil marriage when one of them was divorced.
Some clergy, notwithstanding that official position, did hold private services of prayer and dedication for such couples either in their home or, sometimes, in a church. The Lichfield Report (1978) reviewed the position, along with the pros and cons of holding a service of prayer and dedication for those who had gone through such further marriages. However, it concluded that there was a risk of confusion between such a service and a marriage service. It argued that, whatever explanations were given, it was likely that some taking part would be unaware of the distinction, particularly if the traditional ceremonial elements such as a bride wearing white, the ringing of bells and the like “would convey a powerful misleading message which the words of the service would be unable to correct”. That argument will sound very familiar to anyone who has read the recent FAOC advice.
However, within three years of the Lichfield Report being issued, in July 1981, Synod voted overwhelmingly for a motion that “there are circumstances in which a divorced person may be married in church during the lifetime of a former spouse”. But what were those circumstances? Such was the division on this issue across the country, that it was very difficult to find a way forward. At the root of the disagreement was the question as to whether this was a matter touching on the doctrine of marriage. That question remained unresolved when, in 1985, the then House of Bishops commended under Canon B4 a ‘Service of Prayer and Dedication After A Civil Marriage’. This remains a commended service and is still in use today, particularly by some clergy who feel in all conscience that they are unable to agree to a remarriage in church according to the rites and ceremonies of the Church of England.
The Church of England and the Civil Partnership Act
The next occasion when changes in the civil law led to the Church having to address matters that touched on its understanding of marriage was when the Civil Partnership Act 2004 came into force. How should the Church respond when those who had entered into a Civil Partnership asked for prayers or for a blessing on their new status?
On the 25 July 2005 the House of Bishops provided a Pastoral Statement on Civil Partnerships that said that clergy should not provide a service of blessing for those who have entered into a civil partnership but, if approached by people, they should “respond pastorally and sensitively in the light of the circumstances of each case”.
Nigel Seed KC, then the Chancellor of the Diocese of London, prepared an advice in 2008 for the clergy of that diocese about what to do if asked to conduct services of blessing for those in civil partnerships. Having considered parallels with the ‘Service of Prayer and Dedication After A Civil Marriage’, and noting that “interestingly for a service that is not ‘a service of blessing’, it does include a blessing of the two individuals, but not of their union”, he concludes by saying:
Thus the position is clear. Unless and until one of the relevant authorities listed in Canon B5.2 provides a form of service, beneficed clergy (or other clergy authorised by them) may use a form of service they consider suitable in respect of a civil partnership providing that service does not amount to a ‘service of blessing’ and is reverent and seemly and is not contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter.
It would seem to be commonplace that such services are now in regular use across the country.
Pastoral responses to same- sex marriage
So where does all that leave us now that we are facing another challenge presented to us by Parliamentary intervention into marriage? Once more it fell to the Bishop of Exeter, in this case Michael Langrish, to express the Church’s concern when the Marriage (Same Sex Couples) Act 2013 was making its way through the House of Lords. He said that if the bill was passed:
A basic understanding of marriage, in law, will have irrevocably changed, and with one reality now bearing two different labels; or we will have legislated into being two very different realities, but confusingly bearing the same name.
One of the points about a civil partnership is that it is very much not a marriage. A same-sex marriage is also very much not a marriage in the eyes of the church. So, is there any good reason why a pastoral and sensitive response can be made to those who have entered a civil partnership, but not to those who have entered a same-sex marriage?
The pattern would seem to be well established – we begin with the Service of Prayer and Dedication where the couple but not the union are blessed, we follow that with the pastoral and sensitive prayers for those who have entered a civil partnership which might equally bless them but not their union, and then we come to those who have entered a same-sex relationship where again we pray for and bless them but not their civil union. Although not spelled out in that way, it is my understanding that the many years of work that went into producing the resource section of the Prayers of Love and Faith (PLF) were intended to produce exactly that – a recognition and blessing of the positive goods seen in a relationship, without any acknowledgement of that relationship being anywhere close to what the church currently understands to be a marriage in the sight of God. Such a marriage, when entered into according to the rites and ceremonies of the Church of England, necessarily can only take place between a man and a woman.
It was that understanding that was set out in GS 2289 when the House stated its intention of commending those resources for use by those who wished to use them, but reserving always the right of any cleric to decline to do so on grounds of doctrinal conscience, as was the case in 1985.
On the basis of all the above, it is clearly in order for any cleric who wishes to do so, to use the commended PLF resources in any regularly scheduled service. Although the House has in its guidance so far said that they should not be used other than in regularly scheduled services, I find it difficult to understand why that should be the case. I take on board what FAOC has said about symbolism, but note that the same was said in the Lichfield report in 1978, and that all the symbolic matters that concern FAOC may be just as much present in a regularly scheduled service as in a standalone service. And it is to be noted that the Introduction to the Prayers at pages 3 and 4 is very clear about what is and what is not being offered through using these resources.
It also seems to me that on the same basis that Chancellor Seed considered that, when no other provision had been made but some sort of service was required, then it is within the discretion of the minister to provide a service that is not contrary to or indicative of departure from the doctrine of the Church of England. It is very difficult to see how what is apparently not so indicative in a regular service should become so simply because the service is occasional.
The threat of legal proceedings?
Throughout the discussion of these matters, and obviously something that has weighed heavily with the House, is the possibility of legal proceedings being taken against a cleric who uses prayers that have not had full Canon B2 approval. But I question whether the House has really looked at the nature and detail of those potential proceedings and therefore at the reality of the threat they are thought to pose.
Any complaint would clearly be about doctrine – the whole ground of any such disciplinary complaint would be that what had happened was contrary to the doctrine of the Church. As such it could not proceed under the Clergy Discipline Measure 2003, as section 7(2) of that Measure provides that “proceedings in relation to matters involving doctrine, ritual or ceremonial shall continue to be conducted in accordance with the 1963 Measure”. That is the Ecclesiastical Jurisdiction Measure 1963 (EJM). Its proceedings are complex to say the least. It was their complexity, cost and consequent rare use that led to the passing of the Clergy Discipline Measure 2003.
First, under the EJM there are restrictions on those who can commence proceedings. Under section 19 proceedings can only be commenced (1) by a person authorised by the Diocesan Bishop to bring a complaint; (2) by six persons aged 18 or over whose names are on the electoral roll of the parish the incumbent or stipendiary curate who they seek to complain about; (3) in the case of the stipendiary curate by their incumbent. I would have thought it unlikely that a cleric whose parishioners were unsupportive is likely to offer such prayers. There is much in the guidance about discussing matters and getting the approval of the PCC for their use. Also, the complainants would have a lengthy and potentially expensive path ahead of them. As for the Bishop bringing a complaint, I think any Bishop would have to think long and hard before launching one, as may become clear as we consider the process.
Under section 39, once the complaint has been brought to the Bishop’s attention and they have considered it, they must give the accused and the complainant the opportunity of a private interview. Having held that interview or interviews the Bishop may decide to take no further steps in the matter in which case it comes to an end, or may decide to refer it for inquiry.
If the bishop has referred the complaint for inquiry, the inquiry is carried out by a Committee of Convocation in accordance with section 42. The committee consists in the case of an accused priest or deacon of (i) one member of the Upper House of the Convocation of the relevant province appointed by the archbishop; (ii) two members of the Lower House of that Convocation appointed by the prolocutor of that House; and (iii) two chancellors of dioceses in that province, appointed by the Dean of the Arches and Auditor. That committee inquires into the complaint to decide whether there is a case to answer in respect of which the accused should be put on trial. Both sides may lay evidence before the committee in affidavits; the committee might also require any deponent to an affidavit to attend and answer questions on oath. The committee decides if there is a case to answer and, if so, they spell out what the offence is.
But that is not an end of the matter because they go on to consider whether the offence is too trivial to warrant further proceedings; or that it was committed under extenuating circumstances; or that further proceedings would not be in the interests of the Church of England; and in any of those cases they would then dismiss the complaint. Also, they may decide there is no case to answer. Only if they decide there is a case to answer and that they are not dismissing it for any of the reasons set out above can they send it for trial before the Court of Ecclesiastical Causes Reserved.
This Court consists of five members: two Court of Appeal judges (currently Smales and Lindblom LJJ) and three Diocesan Bishops (currently Chelmsford, Chichester, and Gloucester) They are assisted by between three and five persons selected from of a panel of specialist theologians and liturgists. Proceedings follow the pattern of a criminal trial with the criminal rules of evidence. Any decision is decided by a majority.
If at the conclusion of the proceedings the accused is found guilty of the offence charged, then they are liable to be censured in accordance with section 49. However, under section 49(3), unless the accused has been admonished on a previous occasion in respect of another offence of the same or substantially the same nature, then no censure more severe than a ‘monition’ can be imposed. A monition is “an order to do or refrain from doing a specified act”, which effectively would amount to an order not to do it again. There is therefore no risk of deprivation inhibition or suspension for a first offence.
It is all that complexity coupled with the lack of teeth in any outcome for a first offence that causes me to think that it would be very unlikely that any bishop would (a) authorise proceedings in the first place, or (b) want to send to an inquiry any case that had been launched by anybody else. Equally, I think that any Committee of Convocation would be very tempted to use one of their three options to dismiss rather than send the case to a hearing. Given the limited penalty, for a first offence which this would inevitably be, what would be the benefit of going to a hearing? Even if any of the parties or the Bishop thought that this might resolve an important doctrinal issue, there would be no guarantee of the outcome, and so I would guess little appetite to take the risk.
In all the circumstances, it does seem to me that the threat of litigation is vastly overstated in the papers that have been produced so far.
So where do we go from here?
The resource material in the PLF is available as commended material for use when praying with a same sex couple in regularly scheduled services and that position is likely to remain after the House reaches final decisions in December.
Even if they were to withdraw that commendation, it would be open to any priest relying on Canon B 5.2 to use a form of service considered suitable by them to provide a service of thanksgiving and prayer for a couple who approached them asking for such. It seems to me that it would be very difficult to criticise what would surely be seen as a pastoral and sensitive approach. In the preliminary conversations with the couple, I cannot imagine that the priest would not explain that there were limits to what could be offered because the Church of England for the time being has a doctrine of marriage which does not permit it to do any more, given that they are a same sex couple. I cannot imagine that would be any surprise to the couple, who in agreeing to the service offered, would be acknowledging that they understood that that was the Church’s doctrine.
I can also see no reason why in any announcements about the service, either in advance or at the time, something could not be said that effectively apologised that no more could be offered whilst the current doctrinal position about same sex marriage remains in place. This would overcome the anxiety of FAOC that simply saying what positively is on offer may lead people to conclude that the Church has a doctrinal position other than it has. I can of course understand that people may not want to say anything that detracts from positive statements in the service itself but it would, so far as I can see, provide a complete answer to that significant concern of FAOC.
And we can look back to those same concerns being expressed about the remarriage issues in the 1980s and note that there has been no lessening of an understanding of what the Church’s doctrine of marriage says. People still believe that the couple are committing to a life together till death does them part, and not committing to have a go at it for as long as they can, which has always seemed to me to be what lawyers refer to as ‘special pleading’.
But, assuming that the December position of the House follows on from what was said in October, what of those who are not able to accommodate the prayers into their regular pattern of services? It seems to me that the arguments I have just advanced in relation to relying on Canon B 5.2 apply equally in those circumstances.
What if a diocesan bishop issues an ad clerum purporting to forbid clergy using those prayers in their diocese? The oath of canonical obedience is to “pay true and canonical obedience to the Lord Bishop … and his successors in all things lawful and honest”. On the face of it there is a strong argument for saying that the priest is properly applying canon law and cannot be forbidden from so doing. Canonical obedience is generally understood as obeying such instructions as are given within the law of the church, and the law expressed in Canon B5 allows a priest to use such forms of service as are considered suitable by them for the occasion.
But it should be noted that Canon B 5.4 provides that “If any question is raised concerning the observance of the provisions of this Canon it may be referred to the Bishop in order that he may give such pastoral guidance, advice or directions as he may think fit, but such reference shall be without prejudice to the matter in question being made the subject matter of proceedings under the Ecclesiastical Jurisdiction Measure 1963.” The question here is whether an individual diocesan Bishop, in all the circumstances outlined above, is really able to say that the use of such prayers is either contrary to or indicative of a departure from the doctrine of the Church of England in an essential matter. Ultimately of course if such a direction were given and not followed it could be the subject of a complaint under the 1963 Measure, which would proceed as set out above to an outcome which, at the moment, may seem very uncertain for the Bishop.
Finally, it must follow from all that I have said above that the House needs to give further thought to the matters that I have set out before coming to any final decisions. Careful consideration needs to be given to the long history of the relationship between church and state in relation to the state’s development of marriage and how the church has responded at different times. It needs to be acknowledged that the church has always been concerned that any adaptation of its practices to accommodate what is happening in the outside world may be seen as a threat to its understanding and doctrine of marriage.
However, accommodations have always been made, and the doctrine has survived. There may be a lot of pressure both inside and outside the church to change the doctrine, but there is no doubt what that doctrine is. They should also not forget that some provinces have already changed their doctrine of marriage, and many other provinces are currently struggling over these issues, even as we are. Historically, the House has led the way in providing sensitive and pastoral accommodation in such changing times. My question to them is whether they have the courage to do so again?
