Echoes of Catholic Archbishops’ opposition
The Church of England has been accused of scaremongering in its opposition to civil marriage equality. It has sent in its formal 13 page response to the government’s proposals and included some sound-bite red herrings to get some news attention. It’s biggest red herring is to try to scare all the people who rather fancy a wedding at their local parish church by saying it could be forced to stop performing those for everyone who asks. Another red herring sound-bite is to say this is the worst threat to the church for about 500 years, in Henry VIII’s time.
The Church of England’s opposition to equal marriage echoes many of the points the Catholic Archbishops made in their pastoral letter read in English and Welsh churches this spring.
Man and woman couples only, biological complementarity, procreation, throughout history
Basically they are against civil marriages for same sex couples because, they claim, marriage can only be between an opposite gender couple, because that’s how it’s always been ‘throughout history’. It’s about having ‘biological complementarity’ that allows for procreation. All very familiar arguments that Catholics have heard.
Henry VIII fought with Catholic Rome when he redefined marriage around 500 years ago, adding divorce and executions
They then tell a fib, saying they’ve ‘supported various legal changes in recent years to remove unjustified discrimination and create greater legal rights for same sex couples'; when you check the bishops’ record in the House of Lords on civil partnerships you find that’s just untrue.
They ‘welcome the fact that previous legal and material inequities between heterosexual and same-sex partnerships have now been’, they allege, ‘satisfactorily addressed’. They assert the plans ‘change the nature of marriage for everyone’ and that’s ‘divisive’ and ‘delivers no obvious legal gains’ compared with civil partnerships. So they think ‘it’s deeply unwise’ to change the meaning of a word as fundamental as marriage ‘for essentially ideological reasons’.
They claim there aren’t two types of marriage, civil and religious. They say this confuses the wedding ceremony with marriage itself. They say that religious marriages will be affected by Parliament extending civil marriage to include same sex couples and this ‘means that the nature of marriages solemnized in churches and other places of worship would also be changed’.
They have three ‘slippery slope’ worries that other changes will have to follow: removing the both-genders requirement from marriage while limiting civil partnerships to same-gender couples will be legally unsustainable; it won’t be possible to prevent same sex weddings in places of worship since civil partnerships can now be registered there if that church agrees; and they have ‘serious doubts whether the ‘proffered legal protection for churches and faiths from discrimination claims’ will last.
And for good measure they believe the consultation was flawed, conceptually and legally.
Christian meaning of marriage – everyone should live with what the Church of England believes
When you look at the detail of their response, they fret about the Christian meaning of marriage held by the Church of England and some other Churches. They don’t seem remotely bothered that other Christian Churches take a different view of marriage; they completely ignore people of other faiths (Jews, Sikhs, Muslims for example), and ignore everyone who has no religious beliefs, or who disagrees with the official Anglican position.
They are blatantly insisting the Church of England’s official belief about marriage is all that matters and the freedom of belief of everyone else in the country must be restricted to allow this to remain unchanged. They don’t explain it bluntly like that of course. They say we must not change marriage to allow same sex civil marriages because not changing the religious meaning of marriage is for our own good, the ‘common good’ (para 5).
They disagree with allowing same-sex couples to marry in civil ceremonies because:
- “the intrinsic nature of marriage, as enshrined in human institutions since before the advent of either church or state, is the union of a man and a woman
- marriage affords many benefits to society, which include mutuality, fidelity and biological complementarity with the possibility of procreation
- marriage is a central and unique social institution, not to be confused with the particular ceremony through which it is entered into.”
Weak arguments and a serious lack of evidence
Any number of anthropolgists and historians have shown that the first point is factually wrong: the Old Testament is full of examples of polygamy; other societies have other types of relationships, and marriage as we understand it now, is very different to how it was in the past.
Their second point only includes one thing that would be missing from all civil marriages, an opposite gender couple. The benefits to society of mutuality, fidelity and the possibility of procreation would all be present in civil same sex marriages as much as in religious opposite gender marriages. Of course they do not tell us what precisely is the benefit to society which comes from restricting marriages to couples with ‘biological complementarity’. We suspect that they can’t think of any specific objectively provable substantial benefits. If they could, they certainly would have told us, because this is the crux of their objection.
Their third point is arcane but they mean that opening up marriage to same gender couples somehow changes marriage for opposite gender couples. They haven’t explained how anyone in a heterosexual marriage will actually be able to spot the change in their own marriage when the law is amended. This point is just a way of claiming heterosexuals have an exclusive right to marriage, now and forever.
Civil Partnerships are good enough for you, now stop making a fuss
They go on to say civil partnerships give same sex couples every right marriage does and same sex marriage is only proposed to meet LGBT couples’ ‘emotional needs’. This ignores some significant rights that flow from marriage that don’t go with civil partnerships, like pension rights (and others mentioned in the consultation document), and they dismiss as an unimportant ‘emotional need’ LGBT people being treated as equal citizens, entitled to exactly the same public respect and legal status of being married, that everyone else is legally entitled to enjoy.
Dangerous and new: civil and religious marriage will be different
They make a great fuss over what they see as a legal innovation, making a distinction between civil and religious marriage. But this is so legally arcane and technical it has to be explained in an appendix.
Adultery and non-consummation – how will the judges work that out for civil marriages?
They are bothered that legally ending marriage through divorce by reason of adultery and non-consummation would be left up to the good sense of judges when interpreting these for civil same sex marriages. They really are scraping the barrel now, looking for problems with equal marriage. Hardly any heterosexual marriages ever end in divorce for these reasons, and civil same sex marriages are far less likely to end in divorce for these reasons. Judges are perfectly competent to make these decisions and judgements, that’s their job.
And the fact that non-consummation of a church marriage also entitles someone to seek an annulment is a complete red herring.
They ignore the elephant sized fact that almost all divorces are granted for ‘unreasonable behaviour’ and that will be the same with same sex marriages.
No civil partnerships for heterosexuals: not fair
They fret about heterosexual couples not being able to choose to have a civil partnership and think Parliament and the European court won’t accept this discrimination. I completely agree, as do many LGBT people, but that is hardly a reason to block same-sex couples from having civil marriage. They don’t even say whether they are for or against this.
Civil partnerships in religious premises, why not civil marriages too?
They are anxious that because civil partnerships can now be held in religious premises if that religion agrees, it will prove impossible to prevent civil marriages from being held in religious premises that want to offer these. I agree and already Scotland plans to allow this. There are several religions and Christian Churches that have said they want to offer religious same sex weddings. Church weddings for same sex couples are allowed in several countries already and Denmark added itself to the list only last week. This design flaw in the government’s proposals doesn’t mean that same sex couples can’t have marriage equality. They don’t say whether they are for or against this.
Consultation unreasonable and unfair
They get very picky about how the government has carried out its consultation and about some details in the consultation document. They think the consultation is therefore unreasonable and unfair. Every government consultation faces these criticisms but that’s just what happens when contentious issues are publicly debated.
Church of England’s duty to marry and its unique position in English law
Then they get legally technical in their Annexe because the Church of England is different to other faiths and must, by law, marry almost anyone who asks, usually in the local parish church. Their argument is that marriage has to be between a man and a woman, and that where it happens and what form of ceremony is used is irrelevant to how marriage is legally defined.
They spell this out:
“The effect of the proposals would be that everyone who wished to marry – irrespective of the form or ceremony by which their marriage was solemnized – would be required to enter into the same new, statutory institution of ‘marriage’. That institution would be one which was defined as the voluntary union for life of any two persons. English law would, as a result, cease to provide or recognise an institution that represented the traditional understanding of marriage as the voluntary union for life of one man with one woman.”
They make great play of this arcane legal point:
“The established institution of marriage, as currently defined and recognised in English law, would in effect, have been abolished and replaced by a new statutory concept which the Church – and many outside the Church – would struggle to recognise as amounting to marriage at all. A man and a woman who wished to enter into the traditional institution of marriage would no longer have the opportunity to do so. Only the new, statutory institution, which defined a marriage as the voluntary union of any two persons, would be available.”
According to them this conflicts with the definition of marriage in the Church of England’s Canon Law, which they argue is technically also part of English law.
My response would be that’s their opinion and other lawyers may disagree, but Parliamentary lawyers can always find ways to devise legal solutions to such legal problems. The Church itself through adapting its Canon Law, or Parliament will be able to find a way for the Church of England to carry on teaching what the Church sees as the doctrinal meaning of marriage to the people it marries.
European Court of Human Rights – but it will rule Churches do have ‘freedom of religion’
Then they look at the detail of how the European Court of Human Rights might deal with same sex marriage; specifically they are worried that Churches might be forced to marry same sex couples. It’s far too complex to explain here and really pointless. After a lot of huffing and puffing over the legal details, they finally admit that the European Court will probably accept that Churches have ‘freedom of religion’ to refuse to marry same sex couples, if that is against their doctrine.
I’d say that’s a cast iron certainty.
European Court will probably order religious ceremonies for other faiths which agree
They go on to argue that because some faiths [Quakers, Reform Jews and others] want to provide same sex religious marriages, the government would probably ultimately have to allow this, because the European Court will eventually consider a case complaining about this and make a ruling that will compel this.They think it will be complicated to protect the Church of England from having to provide religious marriages.
I think this is making a mountain out of a molehill and this has been dealt with satisfactorily in all the European states which allow same sex marriage. Scotland is going to write its law to protect the Church of Scotland, but allow other faiths to provide Church marriages if they choose, so it’ll be perfectly possible to protect the religious freedom of the Church of England and the Church in Wales to opt out, if that’s what they believe they should do.