by Peter Collier KC, retired Senior Circuit Judge and former Vicar-General of the Province of York
Further to my recent reflections on the House of Bishops’ October statement on the future use of the Prayers of Love and Faith, I have now also reflected on their statement about the future of clergy and same sex marriage.
Again, they say they have been influenced by the legal advice they have received and the papers provided by the Faith and Order Commission (FAOC).
My reflections, as one who until not so long ago was engaged in the practice of the law, begin in a different place. I begin by looking at what marriage is generally seen to be in cultures across the world and then consider how, in England, the relationship between Church and State has played out over the centuries in changing attitudes to marriage in both Church and State.
Family, Household, Marriage and Law
I am no anthropologist, but as I understand it the basic units from which societies have been formed are tribe, and family. In most cultures there is a social group that broadly accords with what we would describe as the family. The core may be two people or, in cultures recognising polygamy or polyandry, more than two people. In some cultures, the wider household grouping plays a significant role.
It is usually in the context of such groupings that children are born and brought up. The core couple relationship in such groups is commonly called a “marriage”. How a “marriage” takes place, with what degrees of social customs, or required formalities, varies from society to society. Many of us will have had some exposure to different customs through attending Muslim or Sikh weddings in this country.
As societies become more complex and sophisticated, the regulation of any particular society through a system of law will inevitably develop. The law may require preliminaries and formalities if a marriage is to be recognised as such, and to regulate both initiating and ending such a relationship.
More complex societies will accord different consequences as a result of a marriage being recognised, treating the two (or more) people as a unit to be dealt with differently from those same people as individuals. This can have an impact on taxes required to be paid or on monetary or other benefits that the state may provide. In our society there is also a significant amount of law about the place of children and how they are to be dealt with if a marriage breaks down.
As a young Christian, I was taught that marriage is a creation ordinance – it was God’s intention that people would find a helpmeet with whom they would share their life and they would together bring up children. And so this unit has always been the bedrock of a society. Of course, that has traditionally been interpreted as showing that marriage is between a man and a woman and only between a man and a woman. But additionally Genesis can be said to speak of permanence and in Matt 19 we have Jesus using the Genesis phraseology when asked about adultery. That led to the Matthean exception about which volumes have been written; and we will come to remarriage after divorce in due course. I would add that the church that taught me about creation ordinances also taught me that the world was made in 7 days; an article I wrote in the school 6th Form magazine (in 1965) advancing that cause led my Headmaster to write on my report that term: “his Philistine attitude to science will be recorded on his UCCA form”.
Since then, I have learned how to accommodate my interpretation of the Genesis account of creation to a growing understanding of what science shows us. Similarly, I have learned how to accommodate my understanding of what the Bible teaches about marriage, based not only on what science has shown us, but also and perhaps more significantly from getting to know some same sex couples and seeing the fruit of the Spirit in their lives. As my wife often reminds me, just as in our encounters with Christ, “conversion is in the meeting”.
Whose Law?
Throughout much of Europe, and in this country for nigh on a thousand years, the way marriages were initiated and thereafter controlled was governed exclusively by the Church. As the Christian church developed so did its Canon law through various synods and councils. In relation to marriage, perhaps the most significant of those was the 4th Lateran Council (1215). Its published Canons about marriage included Canon 50, prohibiting marriage in the 2nd and 3rd degrees of affinity, and Canon 51, forbidding clandestine marriages and priests witnessing such marriages, and providing that all marriages must be announced publicly by the priest in church so that legitimate impediments might be made known and the priest could investigate whether any impediment existed. That same duty and very similar phraseology remain in our own Canons today, over eight hundred years later – see Canon B33 (Of the duty of the minister to inquire as to impediments).
The Church was able to impose its view of marriage – what it was and how it was to be solemnised and regulated – on the whole of English society. Consequently, for several hundred years the church and the state views about marriage were one and the same. Church courts had exclusive jurisdiction in enforcing the Church’s view of marriage. It was therefore the Canon law that was applied in all circumstances. It was only in church and in accordance with the rites and ceremonies of the church that anyone could enter into a marriage in England.
The theology of marriage as understood by the reformers is set out in the introduction to the ‘Form of Solemnization of Matrimony’ in the Book of Common Prayer (BCP) – a man and woman come together in the sight of God and the face of the congregation to be joined in holy Matrimony; they declare (by their silence) that there is no impediment to their marriage; they then make various vows of lifelong commitment to one another; they are then blessed. In medieval times the making of vows had often happened in the churchyard or in the entrance to the church and the couple then came into the church for the blessing.
However, there is nothing in the 39 Articles about marriage, apart from it being lawful for bishops, priests and deacons to marry (Art 32). The wording of Art 32 is very interesting: “… therefore it is lawful for them … to marry at their own discretion, as they shall judge the same to serve better to godliness”. I think that many who are wanting to enter into a same-sex marriage would claim those words for themselves. The Canons of 1603/4 had no statement about what Holy Matrimony was, just details about its preliminaries, and the permitted place and time of marriage (Art 42); who can grant licences to marry, and other details about licences (Arts 101, 102 & 103); and finally various provisions about divorce (Arts 105,106 & 107).
Recognition of marriages
It is perhaps reasonably well known that how countries deal with other countries’ systems of marriage forms a very complex area of law; not all forms of foreign marriage are recognised in this country as valid. Currently, the government is considering how to enable humanist weddings, and those performed in accordance with other religious traditions such as Islam, to be equally recognised as those carried out in accordance with English law.
But what is perhaps not quite so well-known is the origin of that non-recognition of forms of marriage other than those carried out in accordance with the rites and ceremonies of the Church of England. There were exceptions for Jews and Quakers, provided it could be proved that the marriage had been carried out according to the practices of either of those two distinct groups. However, the theological (and therefore the legal) position was that a couple were not married by a priest, but they married each other by the exchange of promises. The priest’s role was to register and to bless the marriage.
So, there grew up the practice of “clandestine marriages”. These were marriages conducted secretly without following the legal formalities required. In England that meant they had not gone through any of the necessary Canonical preliminaries and had not been performed in accordance with the BCP service for the solemnisation of Matrimony. They were sometimes referred to as Fleet Marriages as many of them were conducted in the Fleet Prison or nearby. By 1740 it is estimated that half of London weddings took place there. Such marriages were often witnessed by a priest.
The beginning of state intervention
With the intention of bringing the practice of such unsatisfactory marriages to an end, the Clandestine Marriages Act 1753 (Lord Hardwicke’s Act) was passed. It put all English Canon Law about weddings on to a statutory basis. It made invalid all marriages that were not performed in accordance with its provisions, unless performed according to Jewish or Quaker rites. So, those apart, a marriage had to be carried out in church after the publication of banns, or the obtaining of a licence from the ecclesiastical authorities (i.e. in accordance with the Canons). This Act was significant because it was the first time that the state law makers made laws about marriage, even if the law they made was simply adopting the church law.
With the growth of non-conformity, members of other religious denominations and groups also wished to be able to be married other than in and by the Church of England. In particular, Unitarians were very unhappy about the Trinitarian language of the marriage service. This was eventually resolved by the Marriage Act 1836. I have referred to this in my earlier paper and noted the Bishop of Exeter’s distress at this invention of “civil marriage”. I also referred there to the removal of any religious service from civil weddings in Register Offices in 1856, bringing about the difference between religious and secular marriages.
Some other state-led changes in our attitude towards marriage
The relationship of a husband and wife within a marriage was again shaped by the ecclesiastical law which was based on scripture, as then understood. Some of that understanding remains to some extent among those who hold to “complementarian headship principles”.
The tradition developed that a woman was given by her father to her husband – passing from the control of one man to the control of another. For a long time, a married woman had no right to own her own property and on marriage her husband gained control of all her property. That did not change until parliament intervened and the Married Women’s Property Acts of 1870 and 1882 gradually gave married women the right to own property, wages and investments separately from their husbands, and eventually to enter into contracts and lawsuits in their own names.
Another ecclesiastical court action was for the restitution of conjugal rights. It was transferred to the court for Divorce and Matrimonial Causes when that was created at the end of the 19th century. By such an action, founded on Paul’s argument set out in 1 Cor 7, a spouse whose partner had left them and was living away from them could obtain an order that they be required to resume cohabitation. This was not abolished until the Matrimonial Proceedings and Property Act 1970 came into force.
The 1991 case of R v R [1991] UKHL 12 is a landmark UK House of Lords ruling that made marital rape a crime by overturning the centuries-old legal exemption for husbands raping their wives. The court’s decision established that a husband can be convicted of rape, thus dismantling the legal principle that a wife’s consent to sexual intercourse became irrevocable upon marriage.
More recent changes – (i) Civil Partnerships
A more recent and significant change has been the introduction of Civil Partnerships in 2004. This did not change marriage but introduced a new state-recognised relationship alongside marriage. If two people (who initially had to be of the same sex, but since 2019 can be of the opposite sex) register such a partnership in front of a registrar and two witnesses, they are accorded almost all the same rights and responsibilities as if they were married. The few that do not carry over have no particular significance from a religious perspective, being chiefly around survivor benefits in occupational health schemes. Many people regarded this as introducing same-sex marriage in all but name.
Civil partnerships proved very successful. By 2014 there had been 60,000 partnerships registered, three times as many as the government had anticipated when introducing them. For some they were preferable to marriage as they carried none of the stains of patriarchal marriage traditions. But for others they continued the stigma associated with gay relationships. Such Civil unions, as contrasted with marriage, are also available in many other European and former Commonwealth countries.
All that can be said about what a civil partnership is that it is the registration of a legal relationship between two people that produces a number of rights and responsibilities for them. There is no reference anywhere to what the relationship of the partners involves or does not involve behaviourally, particularly in the realm of sexual intimacy. Because it is silent in this area, the Bishops found it difficult to say that couples, including a couple where one was a cleric, should not enter such a partnership as there was nothing about it that was inconsistent with an exemplary way of life as per the Canons.
But it has been the practice that if someone who presented for ordination was in such a partnership they were asked (by some, but not all, bishops) to confirm that they accepted the church’s teaching in relation to matters sexual. It used to be the case that the document “Issues in Human Sexuality” was referred to in that context, but that has now been withdrawn and potential ordinands as an interim measure are to be asked to confirm that they will live consistently with the Guidelines for the Professional Conduct of the Clergy. That document at para 10.2 states “The House of Bishops’ Marriage: A Teaching Document (1999) clearly affirms, ‘Sexual intercourse, as an expression of faithful intimacy, properly belongs within marriage exclusively.’” Further pastoral guidance on this issue has been promised and is awaited.
More recent changes – (ii) Same-sex marriage
It was the pressure for real equality rather than a civil partnership (which could potentially be seen as a second-class relationship) that led to the Marriage (Same Sex Couples) Act 2013. This introduced same-sex marriage. Nearly 40 other countries make same-sex marriage available. Between March 2014 and the end of 2022, 55,613 same-sex marriages were registered in the UK. In 2022, 7,800 same-sex marriages were registered, 4,896 being female couples and 2,904 male couples.
It might be asked why a same-sex couple, perhaps already in a civil partnership, would want to convert it, as they can, to a same-sex marriage (note that you cannot convert a heterosexual civil partnership into a heterosexual marriage). The answer is perhaps because it has more of a sense of commitment, perhaps associated with the traditional attitude to and words around marriage ceremonies. The socialisation of marriage, which we learn about from the cradle onwards, would seem to carry a lot of weight.
In a civil partnership, you apply to register it and do so before the registrar, but no words are spoken, no promises are made or exchanged. If you have a same-sex marriage then the same words are used as in a heterosexual marriage, where each person says that there is no impediment / reason in law why they should not marry and that they (call upon those present to witness that they) take the other to be their lawful wedded husband / wife. So there is a level of contracted commitment (about which more later) that is not present in a civil partnership. But it is obvious that those words fall far short of the exchange of vows made in a church service.
The government recognised that some religious organisations hold a different view of marriage. The fact sheet published by the government in April 2014 said: “Many religious organisations believe that marriage should only be between a man and a woman, and the Act explicitly recognises this. The civil understanding of marriage has always been broader than that of many religious organisations. Marriage has evolved over the years, for example to enable Catholics, atheists, Baptists and many others to marry outside the Anglican Church, and to recognise married women as equal to married men before the law.”
There are however some interesting features of the legislation in relation to matters of sexual intimacy. Unlike in opposite-sex marriages, non-consummation is not a ground for voiding a same-sex marriage. Furthermore, you can only bring a divorce relying on adultery if the offending partner has had sex with a person of the opposite sex. I am uncertain what to make of these matters, but it does seem to me to raise the question as to whether there is any underlying assumption, in either a same-sex civil marriage or in a same-sex civil partnership, that there must be sexual intimacy. Clearly, although it is possible for a same-sex couple to adopt a child or for one of a female couple to bear a child, the underlying assumption about procreation (the first of the Augustinian “goods”, as spelled out in the BCP introduction to the service) is simply not there as it would be in an opposite-sex marriage.
The modern contract of marriage – as seen by the state
A well-known legal definition of marriage was provided by Lord Penzance in the case of Hyde v Hyde [L.R.] 1 P. & D. 130, decided in 1866. He defines marriage as understood in Christendom and in English law as: “the voluntary union for life of one man and one woman to the exclusion of all others”.
The case itself is very instructive. Hyde was an Englishman who had converted to Mormonism. He met a young woman, also a Mormon, and in due course they went to Utah where they were married by Brigham Young in Salt Lake City. The male petitioner later renounced the Mormon faith but she did not. They separated and he returned to the UK. She then married again. Again her marriage was according to the Mormon form. The man then sued in England for divorce on the grounds of her adultery. The court refused his petition on the basis that it did not recognise his Mormon “marriage” as a marriage. The reason was that the marriage in Utah was potentially polygamous and English courts cannot recognise polygamous marriages. Lord Penzance, the judge, also said in that case, “Different incidents of minor importance attach to the contract of marriage in different countries in Christendom, but in all countries in Christendom the parties to that contract agree to cohabit with each other alone. It is inconsistent with marriage as understood in Christendom, that the husband should have more than one wife.”
Lord Penzance’s definition of “the voluntary union for life of one man and one woman to the exclusion of all others” has come under some criticism in recent years. Rebecca Probert in Child and Family Law Quarterly, Vol 19, No 2, 2007 said that a new definition was needed.
The President of the Family Division had in fact provided such a definition in the case of Bellinger v Bellinger [2001] EWCA Civ 1140 [2002] Fam 150; [2002] 2 WLR 411.2005.
In that case the issue was the validity of a marriage contracted between the appellant (born a man but who had undergone transgender surgery) and the respondent (a man). There were a number of arguments to be addressed, one of which was that “The relationship called marriage is and always has been recognised as the union of a man and woman.” (para 124).
Thorpe P quoted the above passage from Hyde v Hyde and said at para 128:
“But the world that engendered those classic definitions has long since gone. We live in a multi-racial, multi-faith society. The intervening 130 years have seen huge social and scientific changes. Adults live longer, infant mortality has been largely conquered, effective contraception is available to men and women as is sterilisation for men and women within marriage. Illegitimacy with its stigma has been legislated away: gone is any social condemnation of cohabitation in advance of or in place of marriage. Then marriage was terminated by death: for the vast majority of the population divorce was not an option. For those within whose reach it lay, it carried a considerable social stigma that did not evaporate until relatively recent times. Now more marriages are terminated by divorce than death. Divorce could be said without undue cynicism to be available on demand. These last changes are all reflected in the statistics establishing the relative decline in marriage and consequentially in the number of children born within marriage. Marriage has become a state into which and from which people choose to enter and exit. Thus I would now redefine marriage as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.”
That judgment was given before the introduction of civil partnerships and same-sex marriage. It now needs to be updated to refer to and include those in its modern definition of what is meant by marriage in the law of England and Wales.
The advice from FAOC seems to me to be provided almost as if we were still in a position where they believe that the Church is shaping the law of marriage for England and Wales, as it did in the 18th century. It does not grapple with any of the issues created by the evolutionary development of marriage law by the state which I have been describing, nor with how the church responds to the external realities with which it is confronted. It is very much speaking within its own bubble.
As we have seen in relation to marriages in other denominations, before 1836 not everything that purported to be marriage was recognised by the church as such. And, whilst the church ran the show, the state went along with its views. Little by little the state asserted itself and the two views diverged. The 2013 Act recognised that the Church has a different view about marriage from that which is now the official state position.
The current contract of marriage is very far removed from the contract underlying the BCP service with its threefold Augustinian goods of procreation, faithfulness and permanence.
It also seems to be the case that entering into a contract of marriage adds hardly anything to the registration of a civil partnership, other than at an emotional level.
In those circumstances, and having regard to the absence of any reference to, let alone requirement for, sexual intimacy in a same-sex marriage, and having said that entering a civil partnership is not of itself inconsistent with leading an exemplary life, it seems to me that there is no good reason why the Bishops should not say that entering into such a “marriage” is also not in and of itself an ecclesiastical offence.
Legal advice to the House
I turn now to the legal advice tendered to the bishops on this topic. The Advice tells us that the Chief Legal Adviser to the Archbishops’ Council and the General Synod was asked “to consider two specific possibilities for legislative change to accommodate clergy who enter into same-sex (civil) marriages.” Those two possibilities were (i) changing Canon B 30 and (ii) the creation of a power to grant a canonical dispensation to individual clergy that would permit them to be civilly married to a person of the same sex.
Changing Canon B 30 (Of Holy Matrimony)
It is noted that General Synod has previously resolved that current doctrine should not be departed from and so this route is not considered in any detail. It is however said that it would require more than a change in the Canons, because the doctrine is set out in other places also. This means that it would require a Measure to carry out further changes. Although it would be Article 7 business, it would only require a simple majority vote (presumably in each House) to carry that change into law.
Canonical Dispensation
The other option considered is granting a canonical dispensation. The similarity is drawn with the Canon C 4.5 process whereby faculties are granted to allow the ordination of those who have remarried whilst their former spouse is still alive. The Chief Legal Adviser considers whether there could be a similar faculty to allow an ordinand or cleric to be civilly married to a person of the same sex.
He draws a distinction between that option and Canon C 4.5 on the basis that, when that was permitted, it was on the basis that when B 30 speaks about marriage being “in its nature a union permanent and lifelong” those words encompassed a marriage that was “entered into with the intention that it be permanent and lifelong (my italics)”. Thus, the legal advice at the time said that matters could proceed along the proposed route without compromising the church’s doctrine of marriage. I have always found that to be a rather specious piece of “special pleading” and a convenient way round the difficulty created by the doctrine as traditionally espoused. When the Measure was before Parliament assurances were given that this approach would be exceptional and only granted in exceptional circumstances. But it is certainly no longer the case that these situations can be seen as “exceptional circumstances”. Between 1993 and 2023, 2449 such faculties were granted; and it is estimated that one in six ordinations now follows the grant of such a faculty. And it is also the case that a number of clergy still refuse to remarry those who are divorced as they regard the vow as absolute and not conditional on best intention.
As is well known, the Roman Catholic church does not recognise divorce, viewing marriage as a lifelong and indissoluble covenant. A civil divorce does not end the marriage in the church’s eyes and a divorced Catholic who remarries without an annulment is not permitted to receive communion. Their way round this is for the church’s marriage tribunal to grant annulments, i.e. saying that the marriage never really existed as a real marriage in the first place.
But the advice to the Bishops goes further and says that powers of canonical dispensation “do not permit the doing of things which are contrary to the Church’s doctrine; they permit doing things which are not normally permitted as being contrary to good order or that otherwise require regulation. To provide for a power of dispensation to permit the doing of something that was contrary to doctrine would be a novel departure in the canon law of the Church of England.”
Some historical canonical dispensations
That last statement seems to me to pass over what happened in the nineteenth century amid all the controversies over ritualistic practices. The church was as divided then over ritualistic issues as it is now over sexuality issues. Again the law was clear and many of the matters in dispute were doctrinal. There were prosecutions of those who breached the law, some priests going to prison for the sake of their consciences. In 1881, the bishops in the Upper House of the Convocation for Canterbury reached a decision together that they would no longer prosecute people for breaching various rules of liturgical practice. This followed a decision of the House of Lords in a case against the Bishop of Oxford seeking to compel him to issue proceedings when a complaint was laid about unlawful practices, when it was held that his approach could not be criticised. Such dispensations granted by the bishops permitted the continued breaking of the ecclesiastical law.
And that was not the only occasion when the bishops, for the sake of the good of the church as a whole, decided to act outside the law. The efforts to overcome the ritualism controversies led to the production of revised Prayer Books in 1927 and 1928. These were twice rejected by Parliament. Notwithstanding that, Convocation resolved to press on with its use. Bishop Hensley Henson said that bishops “found themselves compelled to act outside the law because the aid of the law, which was indispensable to the healthy progress of the church, had been refused to them.”
A possible way forward
This would seem to be a more accurate reflection of the law of dispensation (or “economy” as it is known in the Eastern church). Of course it is always easier to allow an episcopal dispensation if there is authority for doing so. And so the introduction of some form of canonical authority would undoubtedly be of assistance to bishops generally in this regard. This would be achieved by amending the Canons, which requires a simple majority (although I would expect there to be a vote by Houses and so a majority in each House would be required).
One approach might be to add to Canon C 26 (On the manner of life of clerks in Holy Orders) a further paragraph at C 26.3 which might read as follows:
The fact that a deacon or priest has entered into a same-sex civil marriage by virtue of the Marriage (Same-Sex Couples) Act 2013, shall not in and of itself be regarded as indicating a life other than one that is a wholesome example and pattern to the flock of Christ.
A similar provision could also be added to Canon C 4 (Of the quality of such as are to be ordained deacons or priests):
No person shall be refused ordination as a deacon or priest solely on the ground that they have entered into a same-sex civil partnership of same-sex marriage by virtue of the Marriage (Same-Sex Couples) Act 2013.
It may be that there will be other and better ways of phrasing such dispensatory provision in the Canons, but I offer this as a starting point for moving forwards.
Those who would wish to argue against this, as I know some will, have really got to grasp two things. First, the absence of any assumptions about sexual intimacy in same-sex marriages. Second, given that the society in which we live has redefined what it means by marriage, how do we as a church relate to those who have entered into civil marriages, whether same-sex or opposite-sex, which are now both very different forms of social contract from that of Holy Matrimony as set out in the BCP? These are two quite different contracts, and it will not do to rely on the fact that the section 1(3) of the 2013 Act preserved the church’s different understanding of what a marriage is, without working out what the consequences of that different understanding mean in practical terms.
