JURIST Guest Columnist Paul Johnson, Anniversary Reader of the University of York, says the British government’s proposed allowance of same-sex civil marriages, but not religious marriages, shows deference and support for the Church of England’s canon laws, despite the Church’s strong protests to the contrary…

In March 2012 the UK government published Equal Marriage: A Consultation, which began a 12-week public consultation “about how the ban can be lifted on same-sex couples having a marriage through a civil ceremony.” The document makes explicit that the “Government is committed to taking forward equal civil marriage” but that the consultation is “limited to [a] consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnized.” A key principle in the government’s proposals, therefore, is that:

Marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

Yet, despite this clear commitment to leaving the religious organization of marriage intact, the consultation has produced a considerable and extremely hostile response from the Church of England (CoE). Senior members of the CoE have described the government’s proposals as an “act of cultural and theological vandalism” (Lord Carey, former Archbishop of Canterbury) and a form of “fancy-free individualism” (John Sentamu, Archbishop of York). On June 12, 2012 the CoE published its formal opposition [PDF] to the proposals in which it stated that the legalization of same-sex civil marriage would “alter the intrinsic nature of marriage as the union of a man and a woman, as enshrined in human institutions throughout history.” Senior clergy have stated that opposition to same-sex marriage in the CoE is so strong that the government’s proposals form the “worst threat” to the church since it was established in 1534.

At the heart of the CoE’s objection to same-sex civil marriage in its response to the consultation is an argument about the existence and importance of canon law on marriage. The CoE asserts that its “teaching on marriage is embodied in law” and that the government has failed to consider the significance of canon law in its proposals to make changes to the statutory organization of civil marriage. Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines, among other things, the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to “state law.” In contemporary England, canon law has become progressively subsumed by both common and statutory law, but has often retained a strong influence, particularly in regards to marriage. For example, when Parliament enacted the Matrimonial Causes Act 1857 which transferred jurisdiction from the ecclesiastical courts of the CoE to the High Court, section 22 stated that the High Court should be “conformable to the Principles and Rules on which the Ecclesiastical Courts have heretofore acted and given Relief.” The CoE also retains considerable control of the content of canon law through “measures” (created by the Church of England Assembly (Powers) Act 1919), which enable it to make amendments and create new provisions. Measures are submitted to the Ecclesiastical Committee of the UK Parliament for consideration and are ultimately subject to parliamentary scrutiny and approval. Canon law therefore relies upon Royal Assent and License, but, where this is given (which it almost always is), it continues to form primary legislation made by the CoE.

It is because of the existence of this constitutional arrangement, in which the UK Parliament acts as the proxy for the royal supremacy to which canon law must acquiesce, that the government’s proposals so explicitly differentiate between civil and religious marriage. The government states in the consultation document:

As we are only seeking to lift the ban on same-sex couples getting married through a civil ceremony, we would ensure that any subsequent legislation on equal civil marriage is clear that marriages conducted according to religious rites and on religious premises could not be between a same-sex couple.

Although the government has not published specific details about the new statutory legislation that will be required to achieve its proposals, such legislation will need to repeal the gender requirements for civil marriage that currently exist in English law. Although there is no statutory definition of marriage in English law the accepted legal definition, derived from the common law established in Hyde v Hyde and Woodmansee (1866), states that marriage is “the voluntary union for life of one man and one woman to the exclusion of all others.” References to gender in statutory law also create a bar to same-sex marriage. For example, section 11(c) of the Matrimonial Clauses Act 1973 states that a marriage is void if “the parties are not respectively male and female.” To fulfill the government’s pledge, parliament will therefore need to enact new statutes establishing a regime of civil marriage open equally to opposite and same-sex couples whilst retaining the restriction that religious marriage is available only to opposite sex couples. There is recent historical precedent for creating legislation of this type: provisions in the Civil Partnership Act 2004 enabled same-sex couples to contract civil partnerships but prohibited civil partnership ceremonies from taking place on religious premises, a prohibition since repealed by the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 made under the terms of the Equality Act 2010.

Although the UK government has made an explicit commitment to creating statutes that leave religious marriage as an exclusively heterosexual institution, the CoE claims that the proposals for same-sex civil marriage will produce an irreconcilable conflict between canon and statutory law. The CoE’s reasoning rests on the definition of marriage found in Canon B 30 [PDF] in its most recent edition of the canons:

The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union, permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side.

In light of this clear statement on the heterosexual exclusivity of marriage found in canon law, the CoE states that:

The Canons of the Church of England are part of the law of England. The Queen’s licence and the Royal Assent are required before a canon may be made and promulgated. Canons are additionally subject to statutory provisions that provide that they do not have effect if they are contrary to the customs, laws or statutes of the realm.

The CoE argues that because canon law on marriage is “part of the law of England,” the existence of new statutory law on same-sex civil marriage will create disharmony in English law. This argument is an obfuscation of the relationship between canon and statutory law that is long-established and clearly defined in England. Section 1(3b) of the Synodical Government Measure 1969, applying the provisions of the Submission of the Clergy Act 1533, states that “no Canons shall be made or put in execution […] which are contrary or repugnant to the Royal prerogative or the customs, laws or statutes of this real.” Since the government is proposing legislation that relates only to civil marriage and not to marriage that falls within the ambit of canon law, the CoE’s canon law on marriage will not be contrary to the “Royal prerogative or the customs, laws or statutes” of England.

The government’s proposals on same-sex marriage exercise parliamentary sovereignty in a manner that pays (rightly or wrongly) the greatest respect to the existing role of canon law. That the government could seek to supersede canon law on marriage (by introducing statutory legislation that conflicted with it) and has explicitly chosen not to do this should be seen as a sign of support for, rather than an attack on, the long-established relationship between church and state in England. Yet the reaction of the CoE suggests that it is an organization riddled with paranoia about the state:

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.

There is no reason why this should be the case. There is a long tradition in England of producing statutory legislation that respects canon law in matters relating to marriage. For example, the Divorces (Religious Marriages) Act 2002 provides state courts with the power to refuse a decree absolute if a couple who were married in accordance with prescribed religious usages have not taken steps to dissolve their marriage in accordance with those usages. Regardless of whether one believes (as I do) that the government is wrong to prohibit same-sex religious marriage, it cannot be accused of vandalizing canon law.

The CoE’s argument regarding canon law is without any foundation. Canon law, under the government’s proposals, will be left untouched. The CoE could, should it wish to, strengthen the heterosexual exclusivity of its canon law on marriage through the introduction of new measures prohibiting same-sex marriage on religious premises in the future; the proposed statutory legislation on same-sex civil marriage would provide no bar to it doing this. In light of this, the focus on canon law in the CoE’s response to the consultation must be seen as a cynical strategy designed to stall this important development in civil marriage law. It is a tactic that attempts to obscure and mystify the relationship between canon and statutory law in order to convince of the CoE’s legal authority in marriage. Yet neither canon law nor the CoE has any legal influence in respect of civil marriage that remains regulated solely by common and statutory law. Whilst the CoE’s response to the government’s consultation demonstrates its trenchant ideological opposition to the social evolution of marriage, its reliance on canon law reveals how threadbare its arguments have become. In place of robust and rational argument, the CoE have resorted to incoherent and flawed legal claims which, once subjected to scrutiny, fail to provide any justification for preventing gay men and lesbians in loving, permanent and life-long relationships from contracting civil marriage.

Paul Johnson is Anniversary Reader in Sociology at the University of York, UK. His current research focuses on the relationship between law, sexuality and social control. He is the author of Love, Heterosexuality and Society (Routledge, 2005), Genetic Policing (Willan Publishing, 2008), Homosexuality and the European Court of Human Rights (Routledge, 2012) and co-editor of Policing Sex (Routledge, 2012).

Suggested citation: Paul Johnson, Same-Sex Civil Marriage Gives Deference to Church of England Cannon Laws, JURIST – Hotline, Jun. 14, 2012, http://jurist.org/hotline/2012/06/paul-johnson-lgbt-coe.php