In an earlier blogpost entitled ‘Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?’, we argued that for a clergyman to enter into a same sex ‘marriage’ would not constitute disciplinary misconduct as the law now stands. Clergy who enter such marriages should be safe from the Clergy Discipline Measure 2003 unless and until the General Synod changes the law to make it a specific disciplinary offence to do so. (This post is filed below.)
However, it has been argued elsewhere that same sex marriage by clergy would or might constitute an offence against doctrine, a so-called ‘reserved matter’, cognisable under the unrepealed provisions of the Ecclesiastical Jurisdiction Measure 1963.
The informative ‘Thinking Anglicans’ website has reported (3rd August 2014, drawing on an article in The Guardian newspaper) that this argument is favoured by supporters of gay marriage, in the belief that the 1963 Measure will afford greater protection for clergy than the 2003 Measure. The 1963 procedure for reserved matters is cumbersome, and has never been used to date. The penalties are also milder: ‘no censure more severe than monition shall be imposed unless the court is satisfied that the accused has already been admonished … in respect of another [similar] offence’ (s.49(3)). (Perhaps this means that a clergyman could only be removed from office after entering a second gay marriage!)
Nevertheless, if the Thinking Anglicans / Guardian report is correct the said supporters are gravely mistaken. They forget why the Clergy Discipline Measure 2003 was passed in the first place. Far from protecting clergy, the 1963 jurisdiction, if it applies, will render them much more vulnerable.
Before the Clergy Discipline Measure, only beneficed clergy enjoyed the protection of the ecclesiastical courts. They could not be removed from office, or penalised in any way, unless the courts found them guilty of an offence. Licensed clergy, by contrast, were at the mercy of their bishops. If the bishop was satisfied that a licensed clergyman had misconducted himself, he could simply revoke the licence, without reference to the courts. The bishop was both prosecutor and judge.
Licensed clergy were understandably unhappy about this (especially as the secular law also denied them protection from unfair dismissal). They started to join trade unions.
It was therefore one of the principal ‘selling points’ of the Clergy Discipline Measure that it granted the same disciplinary rights to licensed clergy as those enjoyed by beneficed clergy. Thus s.8(2) of the Measure provides that ‘In the case of a minister licensed to serve in a diocese by the bishop thereof, the licence shall not be terminated by reason of that person’s misconduct otherwise than by way of [disciplinary] proceedings’, i.e the proceedings provided by the Measure.
This means that, if same sex marriage is not a conduct matter governed by the 2003 Measure but a reserved doctrinal matter governed by the 1963 Measure, the protection afforded by s.8(2) will be lost. S.8(2) only applies to misconduct alleged under the 2003 Measure, not to offences against doctrine under the 1963 Measure. Beneficed clergy may be alright, but licensed clergy will again be at the mercy of their bishops, just as they were before the 2003 Measure.
However, it is argued that a clergyman entering a same sex marriage is plainly not a reserved doctrinal matter. Offences against doctrine under the 1963 Measure are intellectual in character. They concern the expression of religious opinions that are contrary to the Church’s teaching. Getting married is obviously not an expression of opinion, even though it may be motivated by religious opinion. It is an act, a matter of conduct.
Almost any serious misconduct alleged under the 2003 Measure ‘unbecoming or inappropriate to the office and work of a clerk in holy orders’ (e.g committing adultery, getting drunk, being rude to people) will involve some contravention of the Church’s teaching. That is precisely why the conduct is unbecoming and inappropriate. However, contravention of the Church’s teaching by misconduct does not turn a conduct case into a doctrinal case.
The ecclesiastical jurisdiction over doctrinal offences is discussed in another post entitled ‘The Court of Ecclesiastical Causes Reserved: England’s Inquisition’, filed under the category ‘Ecclesiastical Jurisdiction’.