The Devil’s Advocate in another post here has supported the Church of England in its opposition to same sex marriage equality, claiming “the Church’s point of view takes into account the actual constitution, jurisprudence, precedents, trends, and so forth around the issue, ….. the Church’s point of view is educated and reasoned, and the opposition is ignorant and irrational – eschewing reality for imagination.”
The Devil’s Advocate quoted approvingly the words of the former Archbishop of Canterbury, George Carey, from the Daily Telegraph.
A “reasonable and informed article” to prove George Carey wrong
I’m responding here to the Devil’s Advocate’s challenge. I’m aiming here to meet the Devil’s Advocate’s plea for a “reasonable and informed article that … attempts to engage these issues and prove them wrong”.
We had best remind ourselves first, that George Carey is himself no disinterested, independent observer. He is very much opposed to marriage and broader LGBT equality. “As a strong supporter of the Coalition for Marriage” are his opening words in his Telegraph article. He has a long history of opposition to LGBT equality and the civil rights of LGBT people both in his religious teaching and in his voting record on laws in the House of Lords.
The Devil’s Advocate, the Church of England [CoE], and George Carey are all concerned about the legalities.
Mutually contradictory versions of matrimony in English law?
It boils down, according to Carey and the CoE submission, in Carey’s words to:
“Crucially, it shows that proposals for same-sex marriage would create mutually contradictory versions of matrimony within English law.”
Yet Britain has had mutually contradictory versions of matrimony since 1844. Church Canon law is firmly against divorce. The Church keeps its Canon law, and yet lives with the reality of civil law permitting divorce, while the Church doesn’t grant divorces. The accommodation Church and State have reached since mid Victorian times is that its religious ministers exercise their conscience about whether or not to bless any remarriages of divorcees. Some vicars do, some don’t.
What is marriage and will this be changed?
The Church and George Carey have raised the issue that there is potentially a similar conflict about what constitutes a marriage under Canon law and the proposal to adapt the statute law to remove the male and female couple requirement in civil marriage. Lawyers will need to debate whether what the Church and George Carey say is an actual conflict between canon and statutory law. Just because the Church of England says there is doesn’t mean that there is. It’s just one Church lawyer’s opinion. Other lawyers are likely to disagree, because lawyers are notorious for disagreeing and disputing the law. We won’t actually be able to truly tell if the legal conflict over the definition of marriage is real until the draft law is published, and expert lawyers can then examine the detail.
There is always a legal solution and Carey admits one was found for divorce
A solution was worked out to deal with the Church and State’s conflict about divorce in 1844. A solution can also be found for any actual conflict on marriage in 2012. This might involve adding some clarification, or conscience clause into Canon law for Church ministers, as was done in 1844. Or it might involve inserting a simple clause into the statute law Parliament passes, so as to clarify that the Church’s teaching and marriage definition is unaffected by the definition of marriage for civil law purposes.
Even Carey himself recognises that the conflict between the two types of law was sorted out in the past for divorce, saying
“Clergy can refuse to remarry divorcees according to their conscience, with no possibility of discrimination claims being made under equality laws”
so he then shifts to considering the impact he and the Church fear, from European Human Rights law.
The European Court bogeyman
“In the short term, it is unlikely that the British courts will force clergy to act against their consciences, but the Government’s attempt to ring-fence religious and civil marriage cannot last the test of time.”
Let’s be clear; Carey is not an expert in European Human Rights law, nor in the European Court’s legal decision-making practice. This is just his non-lawyer layman’s view. Let’s consider what the Church actually says in its own submission.
In the Annexe they admit:
36. Providing that same-sex marriages may not be solemnized in accordance with religious forms and ceremonies would probably be held to be pursuing a legitimate aim [under Human Rights law] in that the intention would be to respect the right to freedom of religion: religious bodies should not be required to solemnize marriages contrary to their religious beliefs.
So the CoE’s own submission admits there probably won’t be a problem.
Let’s check things really will be OK with the help of an expert barrister
Just to be certain, because this so worries George Carey and the Devil’s Advocate, let’s check the legal opinion of a preeminent barrister, Queen’s Counsel Karon Monaghan of Matrix Chambers.
This formal legal opinion flatly contradicts Carey’s claim that faith institutions may be forced to conduct same-sex marriages. Monaghan, who specialises in human rights, equality and discrimination law, states that
“the protection afforded by Article 9 [European Convention of Human Rights] to religious organisations is strong…I consider that requiring a faith group or a member of its clergy to conduct same-sex marriages contrary to its doctrine or the religious convictions of its members would violate Article 9. Any challenge brought on human rights grounds seeking to establish a same-sex couple’s right to marry in church would inevitably fail for that reason. In balancing the rights of a same-sex couple and a religious organisation’s rights under Article 9 (in particular, in relation to a matter such as marriage, so closely touching upon a religious organisation’s beliefs) the courts would be bound to give priority to the religious organisation’s Article 9 rights.”
The barrister is telling us no “test of time” will undermine the Article 9 protection of the religious freedom of individual church ministers to refuse to conduct same sex marriages against their conscience, as Carey fears.
The Devil’s Advocate and George Carey can relax completely.
Will Churches eventually be forced to carry out same sex marriages?
Carey then moves onto:
“Religious bodies will eventually be permitted to conduct same-sex marriage, and how long can it be before a civil right to equal marriage is forced on every denomination?
Carey confuses two separate things here.
While it is quite correct to suggest that “Religious bodies will eventually be permitted to conduct same-sex marriage”, (I said I agree when I posted about this before, and Scotland will also permit this, and most countries allow this where they permit same sex marriage), his second phrase simply rehashes his fear of European Court compulsion. We have just read an expert barrister’s opinion above, and the CoE’s own submission grudgingly agrees there probably won’t be a problem. This is simply not going to happen because a religious minister’s individual freedom of religion and conscience is protected under Article 9 and ministers will not be forced to conduct same sex marriages. We can also safely assume that the Church of England’s rules won’t permit its buildings to be used for same sex marriages. So there’s nothing to worry about on these points George Carey raises either.
A Danish Red Herring
Carey then introduces a red herring about Denmark:
“In Denmark, under new laws, the state church has to permit same-sex marriage in all its buildings. Clergy can continue to refuse, but their bishops have to find another celebrant.”
The legal position of the Danish State Church is vastly different to the Church of England. Carey either misunderstands, or doesn’t know how the Danish Church and State work. I explained this before, in a recent comment on Danish same sex marriages.
In Denmark the Church and State are inextricably intertwined. The Danish Parliament makes what we would call the Canon law for the Danish Church. In Denmark Churches are all state buildings and its pastors and Bishops are all state employees. But each Bishop decides the theological practice for her/his own diocese. There is no head bishop and no central church authority like the Church of England’s Synod.
So the Danish Parliament makes the rules about what is allowed in its State Churches (as it just has done to allow same sex marriages). But each diocesan Bishop, using their own theological discretion, can refuse to permit gay marriages in all the Churches of her/his own diocese. No pastor in that diocese, even one favouring same sex marriage, can then perform a same sex marriage in a diocesan church.
However, if a diocesan bishop decides to permit same sex marriages in her/his diocese (as most Danish diocesan bishops will soon permit same sex marriages), a pastor who disagrees can refuse to marry a gay couple. Then, and only then, can an alternative minister be found to conduct the same sex marriage. The same thing happens in Denmark for remarrying divorcees with bishops setting their own diocese policy and pastors deciding to remarry divorcees, if their conscience allows this.
Carey either doesn’t understand the detail of how the Danish Church works, or he is being deliberately misleading. The Danish Parliament is not compelling Bishops to provide an pastor to officiate at same sex weddings. It cannot, because Danish Bishops have the doctrinal freedom to decide.
Is it too difficult for a former Archbishop of Canterbury to grasp the concept that what the non-Anglican Lutheran Danish State Church does has no binding effect across the North Sea on what the non-Lutheran Anglican Church of England does about same sex marriage?
This is all just a bright red herring served up by George Carey to confuse and worry people.
Civil Partnerships for heterosexuals too
Carey’s next concern is
“The Government also leaves the issue of civil partnership open to challenge. The courts cannot possibly allow discrimination to be maintained against those heterosexual couples who wish to seek a civil partnership.”
Really, he is straying far from his Church of England territory here. This is about whether heterosexual couples should be allowed Civil Partnerships. This is not a doctrinal matter for the Church of England when the Church has already accepted the principle of Civil Partnerships. In the Church’s submission it claimed to have supported LGBT Civil Partnerships and also says these give same sex couples all the legal rights LGBT people need. (Neither claim is true).
I agree (along with most LGBT people who have considered this issue) with the Church of England’s submission that excluding heterosexual people from the choice of having a civil partnership is unjustifiable discrimination against heterosexual people. The government will almost certainly lose any case taken by aggrieved heterosexuals to the European Court. But this has no practical bearing on civil same sex marriage.
Another Carey red herring.
Adoption agencies and wearing crucifixes at work
Then he trails two more red herrings in front of our noses by raising decisions on legal cases regarding one Catholic adoption agency and two people wearing crosses at work. These cases were taken under entirely different legislation, the Equality Act 2010, and one concerns the provision of goods and services and the other concerns employment discrimination at work. I have said elsewhere on this blog that banning people at work from wearing a crucifix is wrong, and this view is supported by the Equality and Human Rights Commission, who are supporting the workers’ appeals at the European Court. I am confident that the cross-wearers will win.
Under British Equality law, where competing rights clash (e.g. gay rights v freedom of religion), if one right has ‘protected’ status (because discrimination is pervasive – and here LGBT sexuality is ‘protected’), the court judgements are expected to be sympathetic towards the group with the ‘protected’ right. In only one Catholic diocese (Leeds) did one adoption agency insist it had a right to discriminate against all potential LGBT adoptive parents. I’ve never been able to understand which bit of the teachings of Jesus told the adoption agency that gay people are completely unsuitable as adoptive parents and that discriminating against potential LGBT parents was therefore acceptable Christian behaviour. But what happened in one gay adoption case under entirely different legislation is of no helpful significance in resolving whether the state should, or should not, allow LGBT civil marriage.
That’s two more red herrings disposed of.
The ‘Established’ Church
Then Carey raises the ‘establishment’ of the Church of England. This is not an argument made by the Church of England anywhere in its own submission. It’s entirely his personal opinion.
It’s an emotional argument, an appeal to British history.
It’s an argument he doesn’t explain in any way that makes persuasive legal sense in the 21st century. He says the same sex marriage proposals “lack historical memory”. He then drags in the Queen’s coronation oath to protect the settlement of the ‘established’ church. This oath is an ancient historical relic from the tempestuous times when the English protestant state wanted to make sure no Catholic monarch or Catholic sympathiser could undermine the protestantism of the Church of England.
It has no legally binding force on Parliament. It’s a personal commitment made by the Queen, but in our constitutional monarchy, she has to do as she’s advised by her Prime Minister and has to sign into law whatever laws Parliament passes.
The Queen personally disapproves of divorce and this is not allowed in the Church’s canon law, but both of her children are divorced or separated, and she lives with the reality that the heir to the throne has remarried a divorced woman. He didn’t have a Church wedding for that marriage because the Queen refused and she even refused to attend his registry office wedding. Many of our monarchs over hundreds of years have failed to keep their coronation oaths and have not obeyed – as the Church’s Supreme Governor – their own Church’s teachings on marriage, as seen in their common weakness for serial adultery. The Church has survived despite these failures, and remained fully ‘established’.
Divorce in the present royal family and the heir to the throne’s marriage to a divorcee similarly can also be said to undermine the ‘establishment’ of the Church of England.
However this is all of merely historical interest, since Parliament is supreme. Even the Church of England hasn’t attempted to argue against marriage equality on the basis of the ‘established’ church and the Queen’s nominal role as its Supreme Governor. She doesn’t even appoint Archbishops, the Prime Minister does.
Marriage confusion shows government incompetence
Then Carey says
“Second, and just as importantly, the mistaken references to “religious” and “civil” marriage show a failure of competence.”
Maybe he’s right and the government’s words in the consultation document really do confuse the wedding with the marriage and the consultation may indeed be wrong to say there’s a distinction between civil and religious marriage. But discovering problems is one of the purposes of government consultations: to elicit points and problems that may have been overlooked, misunderstood, or completely mistaken. Issues like this arise with almost every government consultation. If the government’s expert legal advice later finds that this is a real issue of meaningful legal significance, it can easily be dealt with either by modifying Canon law slightly, or by including a clarification clause in the statute law.
Any ‘incompetence’ is not a substantial reason that fatally undermines the government’s proposals.
Conclusion – opposition with added rhetoric
Carey’s conclusion simply summarises his opposition to same sex marriage equality and dresses this up with some rhetoric:
“The Government’s fundamental interest in marriage should be confined to preserving an institution in which the raising of the next generation of citizens is stable and secure. Its interest in other kinds of relationship, though it may regard them as of equal esteem, has no pressing importance. To allow the state to interfere in this way in the institution of the family is to establish a very dangerous precedent.”
This doesn’t introduce any new or substantial legal point.
Engaged with Church arguments and proved them wrong
I hope Devil’s Advocate and any other concerned readers looking for a
“reasonable and informed article that even attempts to engage these [Church of England and George Carey] issues and prove them wrong”,
have found their search has ended satisfactorily here.
My opposition here (and previously) to the Church of England’s position is, I believe, far from being “ignorant and irrational”.