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Tuesday, 12 June 2012

summary of C of E response to gay marriage consultation

The Church of England's response to the consultation on equal civil marriage is in a press release and in a fuller submission here.  The headline from these documents is that the CofE can't support the proposal to enable "all couples, regardless of their gender, to have a civil marriage ceremony".

I have summarised below the arguments put forward in these documents to support such a position.

Headline 1) - The proposed changes will change marriage for all - The proposals distinction between civil and religious marriage is an error - and the proposed change will change the way marriage is defined for everybody.  Changing the State's understanding of marriage will change the way marriage (note  - not the CofE wedding ceremony) is defined for everybody and so will change the nature of marriages solemnized in churches and other places of worship.  (Note Anyone who is resident in England has a legal right to marry in his or her parish church irrespective of his or her religious affiliation and the minister of the parish is under a legal duty to conduct the marriage.)

Headline 2) - Safeguarding assurances for religions have little force - once this change is made assurances from Government of safeguarding of religious organisations position on marriage would be of limited value. Once the law was changed that safeguarding would be challenged with discrimination claims in European courts. (the arguments would likely be that to remove the concept of gender from marriage while leaving it in place for civil partnerships is unlikely to prove legally sustainable and that it seems extremely doubtful that the European court would uphold the right of a state to retain gender inequality in civil partnerships once the state had legislated for "equal marriage").  In addition it is unlikely to prove politically sustainable to prevent same sex weddings in places of worship given that civil partnerships can already be registered there where the relevant religious authority consents.

Headline 3) - Civil partnership couldn't be limited to just same-sex couples - if the law were changed so that same-sex couples were able to marry, the legitimate aim of providing civil partnerships for same-sex couples only would cease to exist and there is therefore a real question as to whether the line taken in the consultation paper that civil partnerships would remain limited to same-sex couples would withstand legal challenge.

Headline 4) - Marriage would change to voluntary union between 2 people  - so 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.

Headline 5) - Governments don't have the right to change ages old social institutions - as enshrined in human institutions throughout history (from before the advent of church or state).  Many, within the churches and beyond, dispute the right of any government to redefine an ages-old social institution in the way proposed.

Headline 6) - This change alters the intrinsic nature of marriage as the union of a man and a woman - which embodies the underlying, objective distinctiveness of men and women. Such marriage affords many benefits to society, which include mutuality, fidelity and the possibility of procreation. 

Headline 7) - Civil partnerships already provide for same sex couples - by providing a framework within which same sex couples can exhibit the social virtues of fidelity and mutuality.  Legislating to change the definition of a fundamental and historic social institution for everybody in order to meet the emotional need of some members of one part of the community, where no substantive inequality of rights will be rectified, seems a doubtful use of the law.

Headline 8) - There are no obvious legal gains to such a change - to change the nature of marriage for everyone will deliver no obvious additional legal gains to those already now conferred by civil partnerships.  Imposing, for essentially ideological reasons, a new meaning on a term as familiar and fundamental as marriage would be deeply unwise.

Headline 9) - The consultation overlooks the impact on the position of the established Church.  In common with almost all other Churches, the Church of England holds, as a matter of doctrine and derived from the teaching of Christ himself, that marriage in general – and not just the marriage of Christians – is, in its nature, a lifelong union of one man with one woman.  The Church or England‘s teaching on marriage is embodied in Canon law which is part of the law of England.  Were legislation to be enacted by Parliament that changed the definition of marriage for the purposes of the law of England, the status and effect of the canonical provisions (that set out the Church‘s doctrine of marriage as being between one man and one woman) would be called into question.  In this way the consultation overlooks the implications of what is proposed for the position of the established Church and so the CofE's ability to serve the people of the nation as they have always done.

Headline 10) - Leaving it to the courts to establish a new definition for adultery is unsatisfactory - the consultation document leaves the question of defining adultery, non-consummation etc. to be determined by case law which the CofE thinks is unsatisfactory. Having identical reasons for ending both a same-sex and a heterosexual marriage is problematic and does not seem to be achievable given that the existing definitions of adultery and non-consummation cannot be applied to the case of a same-sex marriage. 

Headline 11) -  The consultation prejudges the outcome - as the exercise has been unsatisfactory because the consultation document prejudges the outcome in 3 ways: 
a) by expressing the issues in prejudicial terms which pre-empt the principles on which it purports to consult (e.g. using language like - how the ban can be lifted on same sex couples having a marriage); 
b) by asserting the existence of a non-existent concept - religious marriage - (there is no distinction in law between religious and civil marriage);
c) by asserting opinions as undisputed facts - e.g. that the commitment made between a man and a man, or a woman and a woman in a civil partnership is as significant as the commitment between a man and a woman in a civil marriage  (If one of the significant elements of the commitment that a man and a woman generally make to each other in marriage is to be open to bringing children into the world as a fruit of their loving commitment, then the commitment of same-sex couples  - whatever its virtues - cannot be acknowledged as identical).

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