Ecclesiastical law

Month: February, 2014

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

‘it would not be appropriate conduct for someone in Holy Orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives’  (House of Bishops’ Pastoral Guidance)

‘Disciplinary proceedings under this Measure may be instituted against any [ordained minister] alleging … conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ (Clergy Discipline Measure 2003, s.8(1)).

Although the Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church, it does not forbid clergy from entering into same sex marriages.  However, the House of Bishops of the General Synod has just issued a robust statement entitled ‘Pastoral Guidance on Same Sex Marriage’, affirming that ‘the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged’.  The statement was published, appropriately enough, on St. Valentine’s Day, 14th February 2014 (accessed on the Church of England’s internet website the following day).

The statement does not explicitly threaten disciplinary action against clergy who take advantage of the 2013 Act to enter into same sex marriages.  However, the assertion quoted above, that to do so ‘would not be appropriate conduct’, may contain a broad hint (reinforced by being printed in bold text on the internet).  The words ‘appropriate conduct’ echo s.8(1) of the Clergy Discipline Measure 2003, also quoted above.

Of course, the House of Bishops is not able to decide authoritatively if making a same sex marriage constitutes misconduct under the 2003 Measure.  The Measure confers that power on the disciplinary tribunals constituted by the Measure, and on the higher ecclesiastical courts (cf s.17 and s.20).  The House can only express the collective or majority opinion of its members.  Nor is the House even in a position, collectively, to institute disciplinary action against clergy.  That is the individual responsibility of each diocesan bishop (cf. s.12).

Criminality and Immorality

As the accompanying Code of Practice points outs, the Clergy Discipline Measure provides no further definition of ‘unbecoming or inappropriate’ conduct (para 28).  However, the legislative history of s.8(1) may give some indication of its intended scope.

In the presecular era there was probably little distinction between law and morality.  Behaviour considered immoral was generally also illegal, at least if done in public.  The 1662 Ordinal (and its predecessors) give opportunity to object to the ordination of a deacon or priest on the ground of a ‘notable crime‘.  Writing in the early 18th century, John Ayliffe suggested that ‘All the causes of deprivation [of clergy] may be reduced to these three heads … want of capacity, contempt [of the ecclesiastical court] and crimes‘ (cited in Combe v De la Bere (1881) 6 Probate Division 157 at 163).

Clergy lifestyles were regulated by canon 75 of 1603.  Canon 75 provides that clergy ‘shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly … playing at dice, cards or tables, or any other unlawful games’.  Canon 109 deprecates ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life’, whether by clergy or laity.  In the early modern period, the ecclesiastical courts were known affectionately as ‘the bawdy courts’, because they exercised criminal jurisdiction in respect of such behaviours.

In the late 19th century ecclesiastical law was amended to take account of the growing divergence between secular law and Christian morality, in order to preserve clergy discipline.  The Clergy Discipline Act 1892 was passed ‘for better enforcing discipline in the case of crimes and other offences against morality committed by clergymen’ (recital).  It provided that clergy were liable to ecclesiastical discipline for ‘an immoral act, immoral conduct or immoral habit’ (s.2).  It further provided that these forms of immorality ‘shall include such acts, conduct and habits as are proscribed by [canons 75 and 109]’: ‘shall include’ suggests that immoral behaviour is not limited to that suggested by canons 75 and 109.

Then the Ecclesiastical Jurisdiction Measure 1963 provided an ecclesiastical offence of ‘conduct unbecoming the office and work of a clerk in holy orders’ (s.14).  ‘Unbecoming’ may be a rather broader term than ‘immoral’.  The Clergy Discipline Measure 2003 seems to broaden the scope of clergy discipline still further, with its phrase ‘conduct unbecoming or inappropriate’, in s.8(1).

Is the wording of s.8(1) broad enough to discipline a clergyman for entering into a same sex marriage?  The purpose of the 2003 Measure was to provide a disciplinary regime for clergy similar to that of secular professions such as doctors or lawyers.  The old terminology which suggested that the ecclesiastical courts exercise a ‘criminal’ jurisdiction over clergy was dropped.  The standard of proof of misconduct was also lowered from the high criminal standard to the civil standard (s.18(3)).  Nevertheless, the Clergy Discipline Measure is still penal, or quasi-criminal, in character.  This means that s.8(1) must be interpreted restrictively or narrowly.

Homosexual acts may be capable of constituting misconduct under s.8(1).  This is clear both from the plain wording of s.8(1) and its legislative history.  However, it does not follow from this that entering into a same sex marriage would contravene s.8(1).  Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal.  The law has permitted or tolerated homosexual acts for many years now.  However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates.  It is a status that is positively conferred by law.

It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

Doctrine and Discipline

Such an argument is also contradicted by the Court of the Arches’ decision in Banister v Thompson (1908) Probate 362.  The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister.  Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had made such a marriage.  When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching.  It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion.  It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390).  The Church’s teaching per se was not sufficient to justify the legal sanction.

It is true that the facts of Banister v Thompson were different from those addressed by the House of Bishops.  The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office.  However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.  The accusation ‘conduct unbecoming or inappropriate’ is couched in milder language than that of ‘open and notorious evil liver’, but the potential consequences (removal from office, prohibition for life from officiating as a clergyman) are still severe.

The House of Bishops’ statement suggests that ‘The effect of the Marriage (Same Sex Couples) Act 2013 … [is that] there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer’ (para 9).  Banister v Thompson, which is now more than 100 years old, reminds us that this is not the case.  The 2013 Act has undoubtedly widened the ‘divergence’ between Church and state concerning marriage.  However, the divergence  began at least as early as 1857.  By permitting the dissolution of the marriage contract by divorce, and remarriage after divorce, the Divorce and Matrimonial Causes Act 1857 effectively denied the Church’s teaching that the marriage contract, once validly made, is indissoluble except by the death of one of the spouses.

Ecclesiastical law responded to the divergence by imposing disciplinary penalties on clergy who became involved in divorce proceedings.  Today the Clergy Discipline Measure makes clear that clergy who are divorced or separated for adultery or unreasonable behaviour are liable to penalties (ss.30 and 31).  Clergy are also required to disclose divorce and separation orders involving them (s.34).

However, there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.  There is a general rule that a person who has been divorced and remarried etc may not be ordained, but still nothing to prevent a divorced person who has already been ordained from remarrying.  Even the general rule forbidding ordination is no longer absolute.  A bishop may now obtain a faculty from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)

Thus, if a clergyman is to be disciplined for making a same sex marriage, the court may want to know why such a marriage constitutes ‘inappropriate conduct’ under s.8(1) of the Clergy Discipline Measure, when a second marriage following divorce apparently does not.

For these reasons it is suggested that s.8(1), despite its broad wording, is still not broad enough to discipline clergy for making a same sex marriage that is lawful under English law.

This conclusion does not deny the force of the House of Bishops’ statement qua pastoral guidance.  As the statement says, ‘[clergy] getting married to someone of the same sex would … clearly be at variance with the teaching of the Church of England’ (para 26).  The teaching is found in Canon B30 and in the Book of Common Prayer, which are cited in the statement.

Thus for clergy to make same sex marriages is indeed unbecoming and inappropriate in the context of Canon B30 and the Prayer Book.  However, the disciplinary offence of ‘conduct unbecoming or inappropriate’ must be understood in the context of the Clergy Discipline Measure, and not (at least not directly) in the context of Canon B30 and the Prayer Book.  The Clergy Discipline Measure itself must be understood in the context of English law, of which it is a part.

Discipline and Pastoral Care

The case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 makes clear that disciplinary proceedings should not be used as a device for resolving a pastoral difficulty, however genuine and serious.  The Rev Mr Bland was found guilty of various ecclesiastical offences and sentenced to be deprived of his benefice.  His cantankerous behaviour had alienated the parishioners to such an extent that his Sunday services were attended only by his housekeeper.  The chancellor therefore held that ‘it is my duty to pass sentence pro salute animarum, for the good of souls, which includes both [Mr Bland] and the souls of [his parishioners] … the convicted clerk and the cures where he was working [should] part company now for ever’ (p.1021).

However, the Court of the Arches strongly disapproved this decision, as based on ‘a wholly wrong approach’.  It held that ‘The paramount consideration in selecting the appropriate sentence for an [ecclesiastical] offence … should be the gravity of the offence.  Censure of deprivation … should never be pronounced in respect of an offence which does not merit such censure merely because it is highly desirable to part an incumbent from his parish and there is no other administrative method of removing him from his benefice’ (p.1021-22).

Of course, the Bland case was not concerned with the Church’s teaching.  However, it was concerned with the relationship between ecclesiastical discipline and pastoral care.  Clergy who enter into same sex marriages create a pastoral problem, for the reason identified by the House of Bishops.  They may not drive their parishioners from the Church as the Rev Mr Bland apparently did, but they still cause the Church’s teaching on marriage to be misrepresented or obscured (cf Pastoral Guidance, para 24).

The Court of the Arches’ dictum in Bland, emphasising that an ecclesiastical penalty must be determined according to the gravity of the offence, reinforces its decision in Banister v Thompson.  How can a lawful marriage be regarded as a ‘grave offence’, or indeed as any offence?

The obvious legal solution to the pastoral difficulty is to amend the law, and so bring clergy discipline into alignment with the Church’s teaching.  This would require new legislation making it a specific ecclesiastical offence for clergy to enter into same sex marriages.

Any amendment of the Clergy Discipline Measure to include such an offence would, of course, require the approval of Parliament, which might not be forthcoming in the present climate of opinion.  However, the General Synod has a common law power to legislate by canon, inherited from the Convocations, which does not require parliamentary approval (see Synodical Government Measure 1969).

It has been suggested that canons made under this common law power are not binding upon lay people, but there is no doubt that they are capable of binding the clergy.  The Marriage (Same Sex Couples) Act 2013 also confirms that ‘No Canon of the Church of England is contrary to s.3 of the Submission of the Clergy Act 1533 [ie. no Canon is contrary to the secular law] … by virtue of its making provision about marriage being the union of one man with one woman’ (s.1(3)).  The phrase ‘provision about marriage’, not being limited to the Church’s teaching on marriage, would seem to be broad enough to encompass a new disciplinary canon forbidding clergy to enter into same sex marriages.

Cracking the Code of Canon Law: Comparative Ecclesiastical Law

The first rule of studying English ecclesiastical law is, or should be, that English ecclesiastical law is not canon law.  If this rule is neglected, the student risks getting lost in the middle ages, or even in biblical times, and will only with difficulty find his way back to 21st century England.

The dictum of the House of Lords in R v Millis (1844) 8 English Reports 641 clearly states that ‘The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898).

Lord Chief Justice Hardwicke’s warning against confusing ecclesiastical law with ecclesiastical history should also be remembered: ‘The history of the ancient councils of this island … furnish very little materials towards fixing the point of law as to the obligations of canons … it is safest for judges to proceed upon sure foundations which are

[1] the general nature and fundamental principles of this [English / British] constitution

[2] Acts of Parliament and

[3] the resolution and judicial opinions in our books,

and from these to draw our conclusions’: Middleton v Crofts (1736) 26 English Reports 788, at p.790.

If these dicta are not heeded, ‘canon law’ becomes a subspecies of historical or theological discussion which bears little relation to the statute law and common law which actually regulates the English ecclesiastical state or Church of England.

The study of ‘canon law’ may be a kind of legal variation on the famous ‘branch theory’ of the Church, which was favoured by the Tractarians and some ecumenically-minded Roman Catholics but rejected by the Papacy.  The laws or constitutional rules of Christian denominations, however diverse, and even of non-Christian religions, are all viewed as so many branches of the one tree (or vine) of canon law.  This is incorrect, for the reasons stated above.  English ecclesiastical law is a branch of English law, not of canon law.

Having said that, it is true, as the House of Lords expressly acknowledged in Millis, that canon law forms ‘the basis’ of ecclesiastical law.  Classical canon law undoubtedly had a great influence on English law as a whole, not just its ecclesiastical branch.  And the constitutional structure of the Church of England is derived from the late mediaeval Catholic Church.

In his book The Legal Framework of the Church of England (Clarendon Press, Oxford, 1996), Professor Norman Doe made the first detailed comparison of the laws of the Church of England and of the Roman Catholic Church.  There is now an annual colloquium of Anglican and Roman Catholic lawyers, whose deliberations are reported in the Ecclesiastical Law Journal.

It is good for ecclesiastical lawyers to study Roman Catholic law, provided they are clear what they are studying.  Classical canon law had a great influence on the development of modern law, but it was still a mediaeval phenomenon.  The Roman Catholic Church is now governed principally by a modern instrument, the Code of Canon Law 1983 (‘the 1983 Code’), which replaced the original Code promulgated in 1917.

The term ‘Roman Catholic law’ may be preferable to ‘canon law’, as it avoids the confusion that has grown up around the latter.  Two further points should also be borne in mind when making a comparative study of ecclesiastical law and Roman Catholic law.

(1) Differences of Legal Status

As well as remembering that English ecclesiastical law and Roman Catholic law are two different things, it is also important to remember the different legal status of the two Churches.  There are two principal differences:

1.  The Catholic Church claims to be a corporation (a so-called ‘moral person’) by virtue of divine law (canon 113.1).  It is ‘constituted and organised in this world as a society’ (canon 204.2).  Public international law, while it does not accept the claim of divine origin, nevertheless does recognise the Catholic Church as an autonomous political society, a ‘perfect society’, with the Pope as its ‘head of state’.  The United Kingdom officially recognises this status by maintaining diplomatic relations with the Holy See.  Pope Benedict XVI made a state visit to the United Kingdom in 2010.  The Church of England, by contrast, is merely one part of a political corporation or perfect society, being the ecclesiastical branch of the English or British state.

Roman Catholic law should therefore, prima facie, be compared with English (or British) law as a whole, not just with that part of English law that regulates the Church of England.  Because it regulates an entire perfect society, not just a part thereof, Roman Catholic law is concerned with subjects that in England are regulated by secular law.  English ecclesiastical law is necessarily much more limited in scope.

The relationship of English ecclesiastical law to secular law is clearly different from that of Roman Catholic law to secular law.  Ecclesiastical law is itself a part of secular law, in the sense that it is part of the law of the state and derives its authority from the state.  Roman Catholic law, by contrast, is independent of any state law and has a different source of authority.  This should be remembered when discussing the relationship between divine law and human law.  If the two Churches have a different relationship to human law, they will also have a different relationship to divine law.

2.  The Catholic Church lacks territorial jurisdiction.  As a perfect society, the Catholic Church resembles a nation-state.  Unlike a nation-state, however, it is not co-extensive with a particular territory and so, apart from the tiny Vatican territory, has no territorial jurisdiction.  It exists under many different regimes, each with their own laws, some of which may be deeply hostile to it.

Some canons of the 1983 Code therefore resemble a kind of unilateral concordat, asserting the Church’s rights against the states in whose territory it exists.  For example, the Catholic Church claims the right ‘independent of any human power whatsoever, to preach the Gospel to all peoples’, and ‘always and everywhere to announce moral principles’ (canon 747).  To this end it claims rights, inter alia, to train or ‘form’ its clergy (canon 232), to establish schools and universities (canons 800.1 and 807), and to acquire and deal with property (canon 1254.1).

It is difficult to think of any similar provisions in English law.  Canon 800.1 provides that ‘the Church has the right to establish and direct schools …’.  Yet it would be rather absurd to have a British law which provided that ‘the United Kingdom has the right to establish and direct schools in the United Kingdom’.  The law assumes the United Kingdom’s jurisdiction over its own territory.

Canon 412 makes provision for the governance of a diocese whose bishop has suffered ‘banishment [or] exile’.  Needless to say, there is no equivalent provision in English ecclesiastical law.  Ecclesiastical law trusts the secular state to protect bishops from such indignity.  Similarly, the 1983 Code confirms the Pope’s power to appoint cardinals in pectore, i.e in secret (canon 351.3).  Church authorities may permit marriages to be solemnised in secret (canons 1130-33).  The obvious reason for this secrecy is the protection of the individuals involved, and of the Church’s position in relation to hostile regimes and cultures.  Again, there are no comparable provisions in English ecclesiastical law, because ecclesiastical law trusts in the protection of the secular state.

In contrast to the global character of the 1983 Code, English ecclesiastical law is local and territorial in scope.  All Church of England Measures conclude with a provision as to the ‘extent’ of the Measure.  This provision invariably states that the effect of the Measure is limited to the provinces of Canterbury and York, though allowing for its application to the Channel Islands and the Isle of Man.  Certain provisions in Measures also apply to the Diocese in Europe.

(2) A Little Knowledge is a Dangerous Thing!

English ecclesiastical lawyers should be aware of the limitations of studying the 1983 Code.  All but the most learned of them will require an English translation of the Code.  However, the official language is Latin.  A commentary warns that ‘every translation should be handled with caution’, because it lacks official approval (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.30).

Another hazard for English lawyers is the deceptive simplicity of European codes of law.  The 1983 Code is a single document and it is published (on paper) in the form of a little book that can fit into a pocket.  The English ecclesiastical law on a particular subject is likely to be voluminous, minutely detailed and perhaps scattered among a number of different Acts of Parliament, Church Measures and other forms of legislation.  What a relief to turn to the 1983 Code and find the same subject dealt with in a few short consecutive paragraphs.

Yet the 1983 Code is not self-sufficient.  It provides that all canons which reproduce the pre-1983 law ‘are to be assessed in the light … of canonical tradition’ (canon 6.2).  Such method of interpretation may not be so different from the interpretation of English law, which has its own ‘canonical tradition’.  Previous statutes, decided cases and academic commentary may need to be referred to in order to arrive at the correct interpretation of a canon of the 1983 Code, just as of a particular Act of Parliament.  The difference is that English lawyers will be unfamiliar with the Roman Catholic canonical tradition, and the tradition will be almost entirely in Latin and languages other than English.

The 1983 Code makes clear that Roman Catholic law is also found in a number of other sources besides itself, such as concordats with states (canon 3), special rights and privileges granted to individuals and corporations (canon 4) and customs, both universal and local (canon 5).  It confers extensive powers on bishops, either individually or in local conferences, to legislate for their own dioceses.  Local secular laws may also be ‘canonised’, in effect treated as part of Roman Catholic law (canon 22).

Nor is the 1983 Code the only Code of the Catholic Church.  It applies only to the Latin Church (canon 1).  The Oriental Rite Churches have their own Code of Canons, which was promulgated in 1990 (‘the 1990 Code’).

A Suggested Practical Approach

An English lawyer may be content to study the 1983 Code simply by reference to its Table of Contents (Books, Titles, Chapters).  However, it may be helpful to approach the Code by reference to English law instead.  Ignore the Table of Contents to start with.  Instead, divide the canons into 3 categories, as follows:

(1) subjects which correspond to English secular law.   (The index to Halsbury’s Statutes provides a useful list of subjects of English secular law. )

(2) subjects which correspond to English ecclesiastical law and

(3) subjects which correspond to neither (1) nor (2).

The canons of the 1983 Code that fall into categories (1) and (2) can then be grouped according to the particular subject of English law.  For example, in category (1)

Administrative and Constitutional Law – canons 16.3, 34-62, 63-75, 130-33, 135-144, 1400.2, 1732-39

Damages / Distress / Restitution – canons 128, 1496-1500, 1651, 1653-55, 1729-31

Judgments – canons 16.3, 1426, 1472, 1593.2, 1607-38, 1641-42, 1644-48, 1650-52

Statutes – canons 6-13, 14-15.1, 16-18, 20-21, 29-33, 1344

Examples of subjects in category (2)

The Ordained Ministry – canons 207, 265-8, 273-4, 375-6, 835.1-3, 1008-9

The Bishop: Pastor, Minister and Ordinary – canons 375-6, 381, 383.1, 384-90, 395, 403.1, 408, 410, 763, 771.2, 782.2

Pastoral Reorganisation – procedure – canons 515.2, 516.2, 518

Pastoral Reorganisation – ministry – canons 517, 520, 526, 536, 543-45, 548-50, 564, 566, 568, 571, 813

Diocesan Reorganisation – canon 431.3

As far as possible, try to avoid entering the same canon (or paragraph of a canon) into more than category or subject.

There are more canons on marriage in the 1983 Code than on any other subject.  In England, the validity and subsistence of the marriage contract are now matters of secular law.  Ecclesiastical law is concerned only with the marriage ceremony.  For comparative purposes, it is therefore advisable to make a similar division of the 1983 canons on marriage, again as far as possible.

The subjects of category (3) may be either secular or ecclesiastical in character.  For example

Dispensations – canons 85-93

Juridical Acts – canons 124-8

The College of Bishops – canons 330, 336-7, 339, 341.2, 749.2, 756.1

The Papacy – canons 64, 68, 72, 331-5, 338, 340-1, 355.1, 358, 360-7, 749.1, 756.1, 1075, 1142, 1273, 1403-6, 1417, 1442, 1629, 1698-9

The Synod of Bishops – canons 342-8

Most of the canons of the 1990 Code are simply copied from the 1983 Code, and so do not require separate study.  However, the 1990 Code is of interest on account of the distinct structures and governance of the Oriental Catholic Churches.  Also, the 1990 Code includes some alterations of the 1983 Code, presumably by way of improvement.  For example, the 1990 Code expands the provisions of the 1983 Code concerning arbitration (see canons 1713-16 in the 1983 Code and canons 1168-84 in the 1990 Code).

Studying the 1983 Code according to the method suggested, with the assistance of an English-language commentary (such as that of Messrs Coriden, Green and Heintschel cited above, though there are others) and with reference to the official Latin to check the meaning of significant words, will not turn an ecclesiastical lawyer into an instant canonist.  However, it will enhance the study of English ecclesiastical law, and secular law too, by clarifying the law’s characteristics, its scope, its strengths and weaknesses.  It may assist the ecumenical cause in a small way, as the annual colloquia demonstrate.  And it is an interesting and enjoyable study in its own right, giving insights into the governance of the Roman Catholic Church, and into the European civil law tradition.  A little knowledge need not be a dangerous thing, so long as it is acknowledged as such.