Church of England: Marriage equality proposals ‘legally and conceptually flawed’

Illustrated rainbow pride flag on a pink background.

The Church of England has said allowing gay couples to marry in civil ceremonies will “dilute the meaning of marriage for everyone” and put its role performing marriages on behalf of the state in jeopardy.

Published today, the Church of England’s response to the government consultation on equal marriage rights for gay and straight couples says the government has been “disingenuous” in referring to civil and religious marriages as distinct institutions.

The state church, which performs roughly a quarter of England’s marriages annually, writes that there is only one type of marriage, despite there being both civil and religious routes into it, and says the government’s insistence that it will not allow religious marriages for gay couples “mistakes the ceremony for the institution”.

Criticising the way the public consultation, which closes on Thursday, has been run, the Church also believes the government’s proposal not to allow gay couples to marry in religious ceremonies would leave it open to legal challenges in England and Wales and at the European Court of Human Rights.

The Church said it rejected the idea of marriage rights for gay couples in the way currently envisaged by the government firstly 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”.

Secondly, because marriage affords benefits to society including “mutuality, fidelity and biological complementarity with the possibility of procreation”, and thirdly because marriage is a “unique social institution, not to be confused with the particular ceremony through which it is entered into”.

It says that to remove the sexual “complementarity” of men and women in the legal institution of marriage “is to assert that men and women are simply interchangeable individuals” and would thus “entail a dilution in the meaning of marriage for everyone”.

The Church criticised the government for accepting without question that the commitment of a gay couple is “as significant” as that of a straight couple.

It says: “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.”

Echoing comments made by the Archbishop of York Dr John Sentamu last month, it goes on to argue: “The one justification for redefining marriage given to us by the Equalities Minister was that it “met an emotional need” among some within the LGBT community.

“Without wishing to diminish the importance of emotional needs, 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.”

Marriage as the country has known it would be “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”.

The legal analysis attached to the consultation argues that if gay couples are allowed to marry, there is a prospect of a court challenge under Article 12 of the European Convention on Human Rights, which confers the right to marriage but does not oblige states to allow gay marriages, and Article 14, which forbids discrimination in respect to human rights, on the bar to gay religious wedding ceremonies.

If the state allowed gay couples to marry, and so conferred on them the Article 12 right to marry, the non-discrimination provisions of the ECHR would mean that the fact that gay couples were barred from religious ceremonies would need to be justified.

The analysis says the government would “bear a very heavy burden” in justifying that provision on the basis of religious freedom, given that numerous faiths actively want to marry gay couples.

It continued: “In that scenario a considerable amount of further legislative provision would be required in order to protect the position of the Church of England and other religious bodies. In particular the whole range of rights and duties that exist in relation to marriage and the Church of England would have to be reexamined.

“Even if a mutually acceptable legislative solution could be found by way of limiting such rights and duties, it cannot be assumed that any such solution would itself withstand subsequent challenge, whether in our domestic courts or in Strasbourg. The ultimate outcome for both Church and State would be quite uncertain.”

A “senior figure” quoted in the Daily Telegraph said: “The canons of the Church of England are part of the law of England and have been continuously since the reformation of Henry VIII. Is it possible to have the law of the Church of England saying something different to the law of England?”

The source added: “I do believe that the European Court could make it impossible for Church of England to go on having the role that it has got at the moment in relation to conducting marriage on behalf of the state.”

While the Church of England acknowledged the recognition of the rights of gay couples in the Civil Partnerships Act 2004, it issued warnings about putting gay relationships on a par with marriage.

In its 2003 consultation response, it said if the Civil Partnerships Bill then under discussion secured “the promotion of greater mutual acceptance of others, the embracing of diversity within our society and the repudiation of homophobia then we agree [with the legislation].

“Society is stronger and more harmonious if we each respect the decisions which adults make about the ordering of their own lives so long as those decisions are not clearly to the detriment of others.”

But, it went on: “We believe that it is in the interests of society for marriage to continue to enjoy a unique status. We seriously question whether there will in practice be a sufficient distinction in law between marriage and registered same-sex partnerships if the proposals outlined in the consultation paper are implemented.”

The 2003 response concluded: “As they stand these proposals risk being seen as introducing a form of same-sex marriage with almost all of the same rights as marriage. We accept that there are issues of social justice which need to be addressed in the light of changing patterns of relationship in our society. We believe that it would be possible and indeed right to do so, consistently with safeguarding the special position of marriage.

“While accepting the case for conferring some new rights on adults who wish to share important parts of their lives with each other, we have significant concerns about the proposed new partnership arrangements and the uneasy compromise they appear to represent.”

In the House of Lords in 2004, the then Bishop of Oxford Richard Harries said there were fears civil partnerships would “undermine the institution of marriage and its special place in the law of this country. I state those views because they are widely shared in Church circles, and the Government will need to address them… However, my own conviction is that, properly understood, this Bill could very well support and strengthen the institution of marriage in our society, rather than weaken it.”

While the majority of Bishops supported the Civil Partnerships Bill in the Lords, the Bishop of Chester Peter Forster said the difficulty was that it “so closely parallels the arrangements for marriage that there is a real danger of a de facto introduction of same-sex marriage by that process. The history of social legislation in this country is often that the consequences are not quite those that are stated as intended.”

Today, a Home Office spokesman said of the Church of England’s response to the government’s current consultation: “The purpose of the equal civil marriage consultation is to enable us to listen to all views, including those of all religions.

“Marriage is one of the most important institutions we have. It binds us together, it brings stability, and it makes this country stronger. We have been clear that no religious organisation will be forced to conduct same-sex marriages as a result of our proposals.

“We welcome the Church of England’s response and we will be carefully considering all points of view before publishing the outcome of the consultation later in the year.”

The Bishop of Sheffield, the Rt Rev Steven Croft said: “Whilst this is being presented as a kind of minor extension to what marriage means, actually, from the point of view of the Church and of society, it is a really, really fundamental change to an institution which has been at the core of our society for hundreds of years and which for the Church is not a matter of social convention but of Christian doctrine and teaching.”

Human rights campaigner Peter Tatchell said the Church was “scaremongering and advocating legal discrimination”.

“The government’s proposals concern only civil marriages in register offices. They will have no impact on faith organisations or places of worship. Senior churchmen are protesting against a law change that will not affect them. They have no right to demand that gay couples should be banned from civil marriage ceremonies.

“It is untrue to suggest that allowing same-sex civil marriages would lead to legal challenges that will force churches to marry gay couples. Civil divorces are legal, yet there has never been a successful legal challenge to religious organisations that ban divorce. The courts recognise a distinction between civil and religious institutions.”

He added: “While no faith organisation should be forced to marry gay couples, any individual minister of religion who is licensed to conduct marriages should be free to perform a same-sex marriage in their place of worship, if they wish to do so. Church leaders should not be allowed to dictate that willing clergy must be banned by law from marrying lesbian and gay couples. It should be a matter for individual clergy and their conscience.”

Ben Summerskill, chief executive of Stonewall, told Radio 4’s Today programme: “Many bishops in the Church of England today will be rather pleased because once again they are not talking about global poverty or the HIV pandemic, they are talking about the subject that obsesses them, and that is sex.

“I have not come across such a master-class in melodramatic scaremongering, that somehow this is the biggest upheaval since the sacking of the monasteries, since as a journalist myself a decade ago I was summoned to a government briefing to be told about weapons of mass destruction in Iraq.”

Shadow Home Secretary Yvette Cooper said: “Two people who love each other and want to make a long term commitment to each other should be able to get married whatever their gender or sexuality.

“Whilst opposition from some church leaders has been strong, just as it was against civil partnerships seven years ago, other prominent church figures are supporting same sex marriage. This debate should not get polarised around religion, as there are many views within and between different faiths.

“No church or religious organisation will be required to hold same sex marriages. Freedom of religion is a very important part of our society and is embedded in Article 9 of the European Convention of Human Rights, and the courts will continue to respect that.

“Parliament has legislated on civil marriage for 400 years. It should update it again now, as it has many times before, to make sure that the way the state recognises long term loving relationships remains relevant and reflects our sense of justice and equality in a modern society.

“David Cameron was right to support same sex marriage. I hope he will not wobble in the face of the first opposition.”

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