Canon B5 and the Prayers of Love and Faith

Legal Office Note, GS Misc 1339, January 2023

The Note discusses certain liturgical Prayers, described as ‘Prayers of Love and Faith’, which have been commended by the House of Bishops for use with same-sex couples.

Canon B5 regulates ‘the discretion of ministers in conduct of public prayer’.  It provides that ‘all forms of service [i.e liturgical prayers] used … shall be

[1] neither contrary to,

[2] nor indicative of any departure from,

the doctrine of the Church of England …’ (canon B5(3)).

The Church of England’s doctrine opposes same-sex relationships in 2 respects. It asserts that

(1) ‘Marriage is in its nature a union … of 1 man with 1 woman’ (canon B30(1)).  This is ‘the teaching of our Lord, affirmed by the Church of England … in the Book of Common Prayer’ (B30(2)) and

(2) the baptismal duty of every Christian is ‘to keep my body in chastity’ (Book of Common Prayer, Catechism).

The Legal Office ‘has carefully examined’ the commended Prayers.  Its Note addresses both the doctrinal difficulties:

(1) The Prayers ‘recognise that the couple’s relationship has been marked by their entering into a particular civil status … regarded by the State as ‘marriage’ (para 8).  However, recognising the status is not the same as blessing it. The Prayers ‘do not bless civil marriages (or civil partnerships)’ (para 4).

(2) ‘A sexual relationship is not inherent in a same-sex marriage, any more than it is in a civil partnership.  The draft Prayers contain no implication that what is being celebrated or blessed is a sexual relationship … they are simply silent on that point’ (para 9). Silence is not approval.

For these reasons, the Legal Office concludes (most fortunately) that the proposed Prayers do not depart from the Church’s doctrine, and are therefore lawful under canon B5(3)).

Thus the Legal Office’s view is that the Prayers are not offered either for

(1) the contractual relationship between the same-sex couple – whether this takes the form of a ‘marriage’ contract, a civil partnership agreement or a ‘covenanted friendship’ (cf para 4) or

(2) any sexual relationship between the couple.

This raises the question – what is the point of the Prayers at all?  What are they offered for, if not for the contractual and sexual relationship between the couple?

The Note concentrates much more on what the Prayers do not bless, than on what they do bless.  It suggests, rather tersely, that ‘any blessing is of the couple and the good in their relationship’ (para 4).  It does not expand on what this ‘good’ is.  Presumably it refers to ‘the mutual society, help and comfort’ (to use the language of the Prayer Book) that is possible in a same-sex relationship.

So the Note identifies 3 aspects of a same-sex relationship

(1) contract

(2) sexual activity (if any) and

(3) ‘the good in [the] relationship’.

The proposed Prayers are offered only for (3), not (1) or (2).

This, of course, implies that the 3 possible aspects of the same-sex relationship are discrete and separable.  It is possible to bless (3) without blessing (1) or (2).

It may be instructive to compare the Legal Office’s Note with a similar Roman Catholic document issued by the Congregation for the Doctrine of the Faith, or ‘CDF’ for short.  (Perhaps the Legal Office is the nearest Anglican equivalent of the CDF!)  The CDF Note was published in February 2021, almost exactly 2 years ago now, with the express approval of the Pope.

Unsurprisingly, the CDF reached the opposite conclusion from the Legal Office.  It held that the Church does not have the right to bless same-sex relationships.

The CDF agrees with the Legal Office about the possible good in a same-sex relationship.  It acknowledges ‘the presence in such relationships of positive elements, which are in themselves to be valued and appreciated’.

However, the CDF disagrees with the Legal Office about the separability of the good in a same-sex relationship, i.e aspect (3) above, from aspects (1) and (2).  On the CDF’s view it is not possible to bless (3) without also blessing (1) and (2).  A liturgical blessing of a same-sex relationship must either bless the totality of the relationship (including its contractual and sexual aspects) or none of it.

Thus a liturgical blessing of a same-sex relationship ‘would constitute a certain imitation or analogue of the nuptial blessing’, even if this is not intended.  The Note quotes from a document issued by the present Pope which states unequivocally that ‘there are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family’ (Amoris Laetitia, para 251).

Acknowledging the good in a same-sex relationship does not mean ignoring the sexual aspect of such a relationship: ‘it is not licit to impart a blessing on relationships … even stable, that involve sexual activity outside of marriage’.  Monogamy is preferable to promiscuity. But it is not the same as chastity.

Thus the CDF implicitly rejects the contention that a sexual relationship is ‘not inherent’ in a same-sex contract, i.e is not characteristic of such contract, as the Legal Office suggests.  Of course it is possible to have a same-sex contract with no sexual activity, just as it is possible to have an unconsummated marriage.  But it is going too far to suggest that sexual activity is not characteristic of a same-sex contract. 

The CDF Note also draws attention to the difference between the Church’s liturgical function and its pastoral function.

The Legal Office refers to ‘blessing … the couple and the good in their relationship’ (para 4).  This effectively identifies the couple with their relationship.  The CDF, by contrast, asserts ‘the fundamental and decisive distinction between persons and the [same-sex] union’. 

The liturgical function cannot separate out the good aspect of a same-sex relationship from its other aspects, and bless that in isolation.  However, the pastoral function is more subtle and flexible than the liturgical function.  The pastoral function can, and should, acknowledge and encourage the good in such relationship.

Thus the CDF Note observes that ‘pastors are called to welcome with respect and sensitivity [homosexual] persons … and … find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel …’.

Liturgy is, by definition, public.  (The very word ‘liturgy’ originally meant ‘public function’.)  As its title makes clear, canon B5 is concerned with the ‘conduct of public prayer’.  Ecclesiastical law does not, and realistically cannot, regulate private prayer.  The whole point of these ‘Prayers of Love and Faith’ is that they are, or will be, public, used in public, as part of the Church’s liturgy.

If the public character of liturgy is understood, the true meaning of canon B5(3), as quoted above, becomes clear.  Canon B5(3) imposes a 2-stage test of the liturgy that it authorises

(1) doctrinal soundness and

(2) public perception.

Hence the requirement of canon B5(3), in [2] above, that prayers must not be ‘indicative of any departure from … doctrine’.  It is not sufficient that they are merely not contrary to doctrine.  Prayers may still confuse or mislead the public about the Church’s doctrine, even without actually contradicting that doctrine.  Canon B5(3) is worded to prevent this.  Like justice, sound doctrine must not only be done, it must be seen to be done – by Anglican lay worshippers, and by persons of any religion and none.  Not just by the Legal Office.

It is argued that the Legal Office Note fails to understand and apply the 2-stage test imposed by canon B5(3).  It effectively treats the 2 stages as one and the same.  The Note asserts more than once that the commended Prayers are ‘not indicative’ of any departure from doctrine.  But not indicative to whom?  The Note neither asks nor answers this question.  It fails to consider the public perception of the commended Prayers.

This failure to apply B5(3) correctly means that the Legal Office’s conclusion on the commended Prayers is flawed.  Even if it was possible to accept that the Prayers do not actually contradict Church doctrine, it is still necessary to consider how they will affect the public perception of that doctrine.  

The Double Meaning in LGBT Ideology

‘in the womb of the Blessed Virgin, of her substance … 2 whole and perfect Natures, that is to say, the Godhead and Manhood, were joined together in 1 Person, never to be divided, whereof is one Christ …’ (Article 2, ‘Of the Word or Son of God, which was made very Man’)

Is the Church of England at last about to surrender to LGBT ideology? The Church Times has reported that ‘the bishops acknowledge that simply to restate the existing ban on same-sex blessings or marriage in church is not an option’. Accordingly ‘formal proposals will be presented to the General Synod in February 2023’, not long now (reported 2nd November 2022). Several bishops are already flying white flags.

The surrender has already been given on the other side of the Severn. Last year the Church in Wales amended its Constitution to authorise the liturgical blessing of same-sex relationships. Now the present author’s beloved parish church – almost a second home since childhood, and a constant place of refreshment, light and peace – is awaiting the imminent arrival of a new incumbent who, according to the official announcement, ‘lives with his partner Jim’, and proudly advertises this arrangement by wearing a wedding ring. (Website accessed today.)

It is no use being nostalgic, of course. Political activism is not an option. Nor does ecclesiastical law help much. The purpose of this blogpost is merely to

(1) examine the seemingly unstoppable phenomenon of LGBT ideology and

(2) ask what, if any, intellectual response to it is now possible.

The Failure of Pan-Anglicanism

The only significant attempt to halt the advance of LGBT ideology in the present century was a policy that may conveniently be labelled ‘Pan-Anglicanism’, which sought a closer integration of the member Churches of the Anglican Communion. The idea was to oppose, or at least balance, Western LGBT ideology with the cultural values of non-Western Churches which were strongly resistant to it.

The Lambeth Conference of 1998 passed a robust resolution ‘rejecting homosexual practice as incompatible with Scripture … the legitimising or blessing of same sex unions [and] ordaining those involved in same gender unions’. However, such resolutions have no authority other than the personal opinion of the bishops who vote for them.

The then Archbishop of Canterbury therefore appointed a high-powered commission, which was tasked with seeking ‘the highest degree of communion that may be possible’ within the Anglican Communion (mandate). One of the members of the commission was Professor Norman Doe, the leading commentator on ecclesiastical law.

The commission proposed a pan-Anglican Covenant, to be ratified by the member Churches, in order to ‘make explicit and forceful the loyalty and bonds of affection’ (118) (i.e an application of tough love!). The Covenant was to be the means of strengthening the Anglican inheritance on the dubious basis that the member Churches enjoyed only a limited autonomy, rather than absolute independence of each other.

Professor Doe was rewarded for his services with a Lambeth doctorate in civil law (DCL). However, the Anglican Communion Covenant itself got nowhere. The LGBT lobby, of course, saw the threat that it represented to them, and resisted it articulately and successfully. There was also a general reluctance among member Churches to compromise their independence.

Pan-Anglican opposition to LGBT ideology forced the postponement of the Lambeth Conference that was due to take place in 2018. The coronavirus situation necessitated a further postponement. The Conference finally met this year, 2022. However, Professor Doe, the erstwhile Apostle of Pan-Anglicanism, failed to persuade even his fellow legal advisers to agree on a definition of marriage. The latest edition of Principles of Canon Law Common to the Churches of the Anglican Communion (2022) lamely admits that ‘it has not been possible to discern a common principle of canon law on who may marry whom’ (p.97)

The last vestige of Pan-Anglican policy now seems to consist of trying to persuade non-Western Churches that, in English law, a civil partnership agreement is something completely different from a marriage contract. Just 3 weeks ago, the present Successor of St. Augustine authorised a response to criticisms of his new Cathedral Dean, which referred to ‘international confusion about the nature of … civil partnerships … civil partnerships are not recognised as marriage’ (Anglican Communion News Service, 21st October 2022). Wedding rings notwithstanding.

This is disingenuous, to say the least. There is no substantive difference between civil partnership and marriage. The only difference concerns the terminology and formalities involved. It is argued that the intention of Parliament in passing the Civil Partnership Act was to create a same-sex marriage contract, but not to call it marriage, because of a political calculation that public opinion was not yet ready (this was nearly 20 years ago now) to accept same-sex marriage in terms.

Jacqueline Humphries provides a most helpful analysis of this issue in ‘The Civil Partnership Act, Same-Sex Marriage and the Church of England’ (Ecclesiastical Law Journal, January 2006). As she says ‘It is clear that, culturally, civil partnerships are being seen as gay marriage’. Indeed they are. Public perception accords with parliamentary intention. Pace the Archbishop, there is no ‘international confusion’ on this point.

The Trojan Horse of Traditionalism

Anglican tradition should not be difficult to identify. It is found in the 3 historic formularies of the Church of England – the Book of Common Prayer, the Ordinal and the 39 Articles of Religion. These date from the 16th and 17th centuries, the early modern period.

Anglo-Catholic ritualism, by contrast, originated centuries later, in Victorian times. It is romantic and aesthetic, driven by devotional practices and devotional materials that are pleasing to the heart, with elaborate ceremonial, ornate decoration and rich colours to please the eye, fine music to delight the ear, fragrant incense to pleasure the nose.

There is nothing inherently wrong with any of these things, of course. The heart and the senses do have their rightful place in religion and in worship. Anglo-Catholic ritualism has probably done much to improve the quality of Anglican worship.

However, there is an ever-present danger of exaggeration. The heart and the senses must not become divorced from authority and reason. Religion that ignores authority and reason, and that exists only in the romantic imagination and the senses is, frankly, bad religion (if it can be called religion at all).

Ritualism has never had an easy relationship with authority. Its refusal to comply with the 1662 regime of public worship has, of course, provided a rich source of material for the study of ecclesiastical law.

Another, hidden, source of tension with authority was the undeniable presence within ritualism of a homosexual culture (or sub-culture). Resistance to the liturgical regime of the historic formularies was accompanied by a latent resistance to the moral regime that they imposed.

It is ironic, therefore, that Anglo-Catholic ritualism came to be seen as ‘traditionalist’. There are 2 reasons for this

(1) its (unsuccessful, and now largely abandoned) resistance to female ordination and

(2) its (apparently successful) resistance to liberal Biblical exegesis. Academic theologians might deny the Virgin Birth, but pilgrimages to Walsingham kept increasing.

A commentator once lightly characterised ritualism as ‘hairsplitting and hypocrisy’. However, in the present century the hypocrisy has been absolved and redeemed by ideology. The gay culture in ritualism is no longer half-hidden behind clouds of incense. Its latent resistance to traditional morality has become overt. It now asserts a contrary, LGBT morality.

Ritualism has therefore been something of a Trojan Horse to tradition. Anglican tradition repudiates Catholic teaching on the eucharist, but affirms Catholic teaching on marriage. (The Prayer Book marriage service is the most Catholic part of the formularies, being taken almost verbatim from the mediaeval Sarum rite.) Anglo-Catholic ritualism affects devout adherence to Catholic teaching on the Eucharist, while repudiating Catholic teaching on marriage. It thereby repudiates both Anglican tradition and Catholic teaching. Under the influence of LGBT ideology, the divorce of romantic ritualism from authority (and from reason) has become absolute.

Traditionalists who oppose LGBT ideology – perhaps of a certain age now – face the uncomfortable reality that the momentum for the ideology has come largely from their own side. (Certainly more than from heterosexual liberal exegetes!) There have been individual secessions to the Roman Catholic Church, and to breakaway Anglican Churches. Otherwise the only course for traditionalists is to follow the Archbishop of Canterbury in pretending that civil partnership is substantively different from same-sex ‘marriage’.

Scripture, Tradition and Reason

Biblical literalism seems to offer the only intellectual resistance to LGBT ideology at present. It may have enthusiastic and articulate adherents. But it is a blunt instrument, and also a rather weak one. It is, frankly, simple-minded. When read in isolation, the Bible is notoriously capable of meaning almost anything. One passage of Scripture can always be opposed by another. It can be plausibly explained away. A harsh-sounding Scriptural reference can be attractively countered by a pleasant-sounding abstraction.

Tradition can offer no resistance, and not only because of the treachery of its false friend, ritualism. Its thought and language come from a different age, of course. The sublime English prose of the Prayer Book is still widely appreciated, but modern Anglicanism is very ignorant of its own tradition. There seems to be almost no systematic study of the historic formularies (perhaps even less than of ecclesiastical law). The historic formularies are treated as just that – of historical interest only.

As mentioned, Anglican tradition is, in part, inherited from the Catholic Church, with which the Church of England shares the Sacrament of Baptism and the historic episcopate. Can ecumenical dialogue do anything to save the situation?

The record here is not encouraging. In the 20th century, several explicit papal warnings against female ordination were ignored. In 2009 the then Pope established Anglican Ordinariates (in this country and overseas) as a bridge across the Tiber, but to little effect. Ecumenists (and their superiors) now seem positively to avoid controversial subjects. The late Father Edward Yarnold SJ, a shrewd observer of Anglican-Roman Catholic interactions, noted that they suffer from ‘the danger inherent in bilateral dialogues, that the ecumenical left hand may not know, or may ignore, what the right is doing’ (Anglican Orders (1996), p.70).

So reason alone is left. It has its own limitations, of course. But it can penetrate further than Biblical literalism and traditionalism. The latter can only address the effects or symptoms of the LGBT ideology (e.g same-sex marriage or transgenderism). Reason can address the ideology itself. It can explain

(1) what the ideology is and

(2) why it is not compatible with the Christian religion.

What is LGBT Ideology?

It is important to begin an analysis of LGBT ideology by admitting that IT IS PARTLY TRUE. (It is another weakness of Biblical literalism that it can appear to deny that there is any truth in the ideology.)

But if LGBT ideology is partly true, reason dictates that it is partly false.

LGBT ideology consists essentially of the assertion of rights – LGBT rights, gay rights. What does this mean, exactly? It is argued that the assertion of ‘LGBT rights’ or ‘gay rights’ is ambiguous. It carries a double meaning, as follows:

(1) it could mean simply that persons of particular sexual orientation, or gender orientation, have exactly the same rights as all other persons have. Equal rights with everybody else. Equal rights of reputation, privacy, freedom of association and freedom of expression.

If that was the only meaning of ‘LGBT / gay rights’ there would be no difficulty. It is, of course, true.

The problem is that this is not the only meaning of LGBT / gay rights. There is a second, quite different meaning

(2) that a sexual orientation or gender orientation is itself a source of rights, that it is productive of rights. That a sexual orientation or gender orientation, of itself, confers rights on the person who experiences it.

The rights purportedly conferred by sexual or gender orientation include the right to ‘marry’ a person of the same sex, the right to engage in genital activity with such person, and the right to choose or change one’s gender.

This second meaning of LGBT / gay rights (2) is certainly not true. The false rights asserted by (2) must therefore be distinguished from the genuine rights asserted by (1).

Thus LGBT ideology does indeed contain an element of truth (1). But, unfortunately, behind the element of truth, there is a lie (2). It is this lie that separates the ideology from the Christian religion.

It is possible to identify a certain structure to LGBT ideology. The element of truth in it (1) is used to protect and conceal the falsehood (2). The lie at the heart of the ideology is concealed by a protective veneer of truth. This means, of course, that it is difficult to oppose (2) without appearing to oppose (1).

It is also possible to see a resemblance between LGBT ideology and romantic ritualism. The LGBT assertion of sexual or gender orientation as a source of rights is in harmony with the tendency of ritualism to assert the sovereignty of the heart and the senses.

Why is LGBT ideology not compatible with the Christian religion?

Biblical and traditionalist approaches to the phenomenon of LGBT, by addressing only its symptoms or effects, are largely concerned to explain only what is wrong with it. This inevitably fixes them with an unattractively negative, judgmental character.

What is right or wrong is ultimately determined by what is true or false. By addressing the LGBT ideology itself, not just its effects, reason can explain what is true and false, not merely what is right or wrong.

Morality is undeniably concerned with (right and wrong) behaviour, but it is much more than that. Christian morality is the doctrine of Man himself. Just as Christianity has a particular belief about God, so it has a particular belief about Man.

Our analysis has indicated 2 objectionable characteristics of LGBT ideology

(1) it contains a lie and

(2) it misuses truth by using it to conceal or protect the lie.

Any lie must be incompatible with true religion. Christian witness is like witness in court – to the truth, the whole truth and nothing but the truth. It is not about half-truth, nor about negotiating some kind of bargain between truth and falsehood.

Does the lie in LGBT ideology matter much? It engages the God-given constitution of Man himself. It denies the constitution of the human person as male and female. It denies the constitution of marriage as a bodily union or ‘one flesh’ (see blogpost ‘The Constitution of Marriage: Consensus-Copula’). It denies the God-given nature of both gender and marriage. If gender and marriage are determined only by individual orientation, they cease to be God-given and become man-made instead.

By engaging the God-given constitution of Man, LGBT ideology also engages Man’s relationship with God. God not only created Man in His own image, He Himself became Man.

This is powerfully and beautifully expressed by Article 2, quoted above. Jesus was, and is, both God and Man. To follow Jesus is therefore to accept the truth about both, not just about the one or the other. God and Man cannot be divorced from each other. They stand or fall together. It is no good asserting the truth of the Virgin Birth while denying the truth about marriage.

It follows from this that an individual who patterns his lifestyle on LGBT ideology, or who appears to do so, is not an appropriate person to teach the Christian religion, or lead a Christian community. And a vicar who does not tell the truth about Man cannot tell the truth about God.

The Constitution of Marriage: Consensus-Copula

‘Marriage … is a lifelong union between one man and one woman …’ (Professor Norman Doe, Christian Law (2013), p.394)

Though formulated less than a decade ago, this alleged ‘principle of Christian law common to Christian Churches’ has not aged well. It was, of course, published in the same year that Parliament approved the Marriage (Same Sex Couples) Act.

Now the Professor’s own ‘ecclesial community’, as he describes it (p.viii), the Anglican Church in Wales, is considering a proposal to authorise a liturgical rite of blessing of same-sex marriage. (Blessing only, because the solemnisation of same-sex marriage in church is at present forbidden by the secular law.)

The proposal is accompanied by an ‘Explanatory Memorandum’ signed by all 6 of the Welsh bishops. This argues that blessing a same-sex marriage is justified by the Bible, as interpreted with the aid of ‘new social, scientific and pyschological understandings of sexuality’.

Despite a widespread and 2,000-year-old perception to the contrary, the Bible does not condemn homosexual acts per se. It condemns only lust (or porneia in Greek), albeit it tends to identify lust with homosexual acts rather than heterosexual ones. The moral quality of a homosexual act therefore depends, not on the act itself, but on the intention or motive of the actors. An act that is motivated by lust is bad. However, one that is motivated by love is good.

Persons who enter a same-sex marriage demonstrate thereby that they are motivated by love, not lust. The Church should therefore bless such marriage.

In pre-modern times legal discussion of marriage concentrated on the conditions necessary for a valid marriage (consent, absence of impediments, dispensation from impediments, ceremonial formalities) and the consequences of invalidity (the legitimacy of children, title to property). Recent incidents of forced marriage, and of marriage ceremonies not recognised by law, have led to a revival of interest in these matters. In modern times, discussion turned to the circumstances (if any) in which a marriage can be dissolved, and the consequences of marriage breakdown (financial support, custody of children).

However, the recent phenomenon of same-sex marriage raises the most fundamental issue of all. What is marriage? Assuming that all conditions for its validity are satisfied, how does a marriage come into being?

The Church in Wales Memorandum does not begin to address this question. Even if it was possible to accept its biblical exegesis on homosexual acts, this does not explain how a same-sex relationship, with or without sexual acts, is capable of constituting a marriage. Allusions to marriage are expressed in fluffy abstractions: ‘faithful and mutual commitment’, ‘loving and faithful commitment’, ‘lifelong fidelity and mutual comfort’.

Recent political controversies on both sides of the Atlantic have prompted much discussion of the constitutions of the United States and the United Kingdom. The American and British constitutions are different in many ways, but they have one thing in common: they are both man-made.

Like the United States and the United Kingdom, marriage also has a constitution. Unlike them, however, this constitution is God-given, not man-made. The Book of Common Prayer teaches that marriage was ‘instituted of God [i.e constituted by God] in the time of man’s innocency’. In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott, Lord Stowell, observed that marriage ‘is the parent, not the child, of civil society’ (p.669). This God-given constitution of marriage is the foundation of all other constitutions of human society.

Consensus-Copula

Marriage has 2 essential constitutive elements, which are conveniently summed up in 2 Latin words (1) consensus and (2) copula.

The Prayer Book describes marriage as a covenant. Lord Stowell described it as ‘a contract according to the law of nature … wherever 2 persons of different sexes engage by mutual contracts to live together (Lindo v Belisario (1795) 161 English Reports 530, p.636). The different terminology reflects the dual heritage of Christianity, Jewish-Biblical (covenant) and Graeco-Roman (contract, natural law).

Secular law agrees with ecclesiastical law. ‘The contract [of marriage] itself, in its essence … is a consent on the part of a man and a woman to cohabit with each other, and with each other only’ (Harrod v Harrod (1854) 69 English Reports 344, p.349)

Consensus or contract / covenant is, of course, not remotely unique to marriage. A vast multitude of human relationships – economic, political, international and ecclesiastical (including the Church in Wales itself, of course) – are constituted by contracts of one sort or another.

The unique constitutive element of marriage is therefore the union, or copula, that proceeds from the consensus.

Consensus is inseparable from copula. Lacey and Mortimer confirm that ‘the institution [of marriage] consists in [1] a contract [consensus] and [2] its fulfilment [copula]’ (Marriage in Church and State (1912-47), p.39). They explain the relationship between the two

‘the surrender of the body is common alike to marriage and to illicit intercourse … the intention which makes it marriage cannot be adequately expressed without words or their equivalent’.

Thus sexual intercourse per se does not constitute copula. Copula requires prior consensus. Pre-marital intercourse between the couple is not consummation.

Lord Stowell observed that ‘A marriage is not every casual commerce [i.e sexual relationship]; nor would it be so even in the law of nature … But when 2 persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation … That, in a state of nature, would be a marriage and … in the sight of God’ (Lindo v Belisario again, p.636).

Union, or copula, has both a metaphysical and a physical dimension.

The Prayer Book tends to emphasise the metaphysical dimension of union. The couple are ‘joined together by God’. Marriage signifies ‘the mystical union that is betwixt Christ and His Church’. However, the Prayer Book does refer to the physical dimension of union as ‘one flesh’.

The concept of marriage as one flesh is, of course, of biblical origin, and is affirmed by Christ Himself

‘the Creator made them from the beginning male and female … For this reason a man shall leave his father and mother, and be made one with his wife; and the two shall become one flesh … they are no longer two individuals; they are one flesh’ (Matthew 19, vv4-6).

This makes clear that marriage engages, not merely the constitution of all human society, but the very constitution of the human person, created male and female.

A married couple are joined together by a metaphysical act. Marriage is made in Heaven. But even Divine Grace yet requires human cooperation. The newlyweds cannot simply rely on God to effect their union. They are called to do their bit as well! The physical dimension of copula is effected by marital intercourse. Intercourse between the couple completes, or consummates, their marriage. The biblical phrase ‘one flesh’ could hardly make this clearer.

The precise relationship between consensus and copula was much discussed in the mediaeval Church. Robert E Rodes noted that ‘mediaeval canon law vacillated between [1] consent and [2] marital intercourse as the effective consummation of the marriage’ (‘Canon Law as a Legal System’, Natural Law Forum (1964) p.47n)

Messrs Coriden, Green and Heintschel relate that

‘the Paris school [theologians] taught that consent alone was necessary for a true marriage, while the Bologna school [canonists] held that consent was the beginning of marriage, but only with sexual consummation did a true marriage come into existence’ (The Code of Canon Law. A Text and Commentary (1985), p.812)

The papacy, characteristically, struck a compromise between these 2 schools of thought

‘true marriage exists from the moment of consent; when this consent is completed with sexual intercourse, the property of absolute indissolubility is added … the two becoming one flesh’.

Law has much more to say about consensus than about copula. If a marriage contract is validly made then consummation is presumed. However, proven non-consummation is a ground of nullity in law.

It is interesting to compare the English and Roman Catholic laws on this matter. Non-consummation is not an automatic ground of nullity under either law. In England and Wales, an unconsummated marriage is said to be voidable rather than void. There is a prima facie right to a decree of nullity, but this may be lost on equitable grounds (Matrimonial Causes Act 1973, ss.12 and 13).

In Roman Catholic law an unconsummated marriage may be dissolved, rather than annulled, for a ‘just cause’ (1983 Code, canon 1142). This power forms a rare exception to the Catholic teaching that a valid marriage contract is indissoluble. In England and Wales a non-consummation case can be decided by the local county court. In the Catholic Church such cases are reserved to the Pope himself. No lesser authority may decide them.

English law therefore implies a spouse’s right to consummation of the marriage. Roman Catholic law implies the couple’s joint duty to consummate. However, both laws make clear that an unconsummated marriage is constitutionally incomplete.

Constitution and Purpose

The Prayer Book identifies 3 purposes of marriage, ‘the causes for which matrimony was ordained’:

(1) children. Thus children are not constitutive of marriage. Copula does not require conception. The Prayer Book explicitly acknowledges this by providing that a prayer for the procreation of children ‘shall be omitted where the woman is past child-bearing’.

(2) sexual love. Influenced, no doubt, by celibate mediaeval theologians, the Prayer Book is somewhat grudging in its treatment of this purpose, describing it as ‘a remedy against sin, and to avoid fornication, [for] such persons as have not the gift of continency …’. (This also explains the paucity of reference to marriage as ‘one flesh’.)

Lacey and Mortimer astutely point out that marriage qua ‘remedy against sin … seems to conflict with the statement that it was instituted in the time of man’s innocency’ (op cit, p.28).

Modern liturgies are more generous. Common Worship states that ‘Marriage brings husband and wife together in the delight and tenderness of sexual union’. Its predecessor, the Alternative Service Book (1980), stated that marriage is given so that the couple ‘may know each other in love, and, through the joy of their bodily union, may strengthen the union of their hearts and lives’.

(3) Archbishop Cranmer, the first married Archbishop of Canterbury, sought to balance the negative mediaeval view of sex by the providing that marriage is also ‘for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity’ (D MacCulloch, Thomas Cranmer (1996), pp.420-1)

Purposes (2) and (3) are essentially the same – love. They merely refer to different aspects of married love, erotic or sexual love, and friendly, companionable love. Thus marriage has 2 essential purposes, love and children.

It is important not to confuse the constitution of marriage (what is marriage?) with the purpose of marriage (what is it for?). Pleasant-sounding abstract references to marriage (such as those in the Church in Wales Memorandum) tend to do this.

Faith assures that God constituted marriage out of love for humanity, and love is, of course, a good motive for marriage. But love, like children, is not constitutive of marriage. Sad though it is, a marriage can still exist without love, just as it can exist without children.

Mere tender feelings cannot be constitutive of marriage. And the suggestion that love is constitutive of marriage carries the false implication that the only valid marriage is a happy one.

The Marriage Quadrilateral

The phenomenon of same-sex marriage raises 2 questions, which this analysis has sought to answer

(1) What is marriage? Marriage is consensus-copula.

(2) What is marriage for? Love and children.

Consensus, copula, love, children. Having identified this marriage quadrilateral, let us apply it to a same-sex relationship.

A same-sex relationship is not incompatible with consensus. It is, of course, perfectly possible for 2 persons of the same sex to make a contract, or ‘covenant’, to live together unto their lives’ end.

A same-sex relationship is biologically incapable of producing children. However, as discussed, children are not constitutive of marriage. A childless marriage is prima facie just as validly constituted as any other.

A same-sex relationship is capable of love. But again, love, like children, is not constitutive of marriage.

However, a same sex relationship is incompatible with copula. Even the current secular law does not deny the obvious biological fact, which it has no power to change. As amended by the 2013 Act, it acknowledges that its non-consummation provisions (discussed above) ‘do not apply to the marriage of a same-sex couple’ (1973 Act, s.12(2)).

It may be thought that the mediaeval uncertainty about consensus-copula affords some sort of precedent for same-sex marriage. However, that debate concerned only the indissolubility of marriage, a different issue. It involved no denial that sexual consummation is a duty of marriage, or that procreation is a purpose of marriage.

Modern permissiveness is essentially the divorce of consensus-copula, albeit for contradictory reasons. Cohabitation outside marriage (what used to be called ‘living in sin’) implies that prior consensus is not necessary to copula, and may even hinder or restrict copula in some way. Same-sex marriage, by contrast, implies that consensus alone constitutes marriage, without the need for copula. Thus the permissive society both rejects the marriage contract and insists upon it.

Same-sex marriage is also the divorce of the 2 purposes of marriage, love and children. Children are not constitutive of marriage. And marriage is not, of course, a guarantee of children. As the Prayer Book makes clear, children are a blessing, not a right, of marriage. But the constitution of marriage serves the purpose of procreation. A same-sex relationship, by contrast, is constitutionally incapable of serving this purpose. A same-sex relationship is therefore not comparable to a childless marriage.

The link between married love and children first became controversial in the mid-20th century. The famous papal encyclical Humanae Vitae (1968) affirmed ‘the inseparable connection, established by God, which man on his own initiative may not break, between

[1] the unitive significance [love] and

[2] the procreative significance [children]

which are both inherent to the marriage act’ (para 12).

The Lambeth Conference 1930 loosened this connection somewhat by suggesting that ‘where there is … a clearly felt moral obligation to limit or avoid parenthood and where there is a morally sound reason for avoiding complete abstinence … other methods [than complete abstinence] may be used …’ (resolution 15).

However, despite the 20th century confusion over the precise nature of the link between married love and children, there was no denial that the link exists.

It is controversial to equate same-sex love with married love. It may seem self-evident that married love is unique to marriage, i.e consensus-copula. The Catholic Church apparently denies that same-sex love is of the same quality as married love. Homosexualitatis Problema (1986) (not an encyclical, but a letter issued with papal approval) stated that ‘the [homosexual] inclination itself must be seen as obiective inordinata‘ (para 3). The harsh-sounding Latin phrase could perhaps be rendered ‘confused’ in vernacular English. But law and love (and Latin) are different subjects, of course.

The authorities and commentaries discussed above support Professor Doe’s ‘common principle’. A same sex relationship is capable of 1 of the constitutive elements of marriage, and arguably resembles 1 of its purposes. However, it is not capable of the other 2 elements of the marriage quadrilateral. It is therefore not on all fours with the constitution of marriage to which the common principle bears witness.

Clergy Doctrine and Same Sex Marriage

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’.

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.

Ecclesiastical Law and Equality

R (Johns) v Derby City Council (2011) EWHC 375 (Admin)

Mr and Mrs Johns were foster carers, whose Christian beliefs on homosexuality apparently conflicted with the Council’s ‘fostering standards’.  The administrative court declined to grant the declaratory relief that Mr and Mrs Johns had sought.

However, the case is of interest on account of the court’s thesis on the relationship of law to religion.  The court held that ‘well understood principles’ (para 36) show that

(1) English law ‘do[es] not include Christianity, in whatever form’ (para 39), and is ‘essentially neutral’ in matters of religious belief (para 41) and

(2) law and religion are strangers to each other, with the result that religious belief is always a question of fact to be proved by evidence (para 35).

Thus religious freedom and equality demand that the court be ‘neutral’ in religious matters (cf para 48).  Neutrality in turn demands ignorance.   The court cannot know anything of religious belief other than what is proved in evidence before it in the particular case.

This thesis does not sit comfortably with ecclesiastical law.  The court made the briefest of references to the existence of an ‘Established Church’, but did not stay to consider the legal implications of this.

The ‘Established Church’ is so called because it is constituted (i.e established) by law, English law.  The Church’s legal function is to administer the Christian religion in England.  The religion that it administers is defined by law.

The English law which principally defines Christian doctrine today is the Worship and Doctrine Measure 1974.  S.5(1) of that Measure provides that that doctrine is found in the 39 Articles, and the Book of Common Prayer (‘BCP’) and Ordinal of 1662 (collectively known as the ‘historic formularies’).  A Church of England Measure is primary legislation with ‘the force and effect of an Act of Parliament’ (Human Rights Act 1998, s.21(1) and Church of England Assembly (Powers) Act 1919, s.4).

The Worship and Doctrine Measure 1974 is therefore just as much a part of English law as the ‘equality’ laws.  The effect of s.5(1) is that the Church’s formularies are incorporated into English law, rather as the European Convention on Human Rights is incorporated by the 1998 Act.  This means that the doctrine found in them cannot be dismissed as merely the private belief of individuals.

The 1974 Measure further provides that all liturgy should be consistent with the Church’s doctrine, and that ecclesiastical officials, including ecclesiastical judges, may be required to make a formal assent or subscription to doctrine (s.5).

The court did refer to the ‘well-recognised divide between Church and state’ (para 41).  However, it may not have recognised the ‘divide’ correctly.  ‘The state’ comprises both the ecclesiastical state and the secular state.  It is wrong to identify the state with the secular state alone.  The Church / ecclesiastical state comprises those institutions and offices whose function is the administration of religion.  It may be described as the ecclesiastical system.  Just as the legal system exists to administer justice, so the ecclesiastical system administers religion.

Even secular law, not just ecclesiastical law, contains some recognition of Christianity.  The Monarch is required to ‘join in communion’ with the Church of England, under the Act of Settlement.  Bishops retain the right to sit in the House of Lords.  The Church (albeit with other ‘faith groups’) retains rights over the teaching of religion in secular schools.

The court’s ‘well-understood principles’ therefore require significant modification:

(1) English law is not ‘neutral’ in matters of religion.  On the contrary, the state continues to assert the right to define and to administer the Christian religion.  It is true, however, that the administration of religion is the function of the ecclesiastical state, not the secular state.  Secular judges are therefore correct to decline a responsibility which does not belong to them.  A secular judge who assumed a responsibility for administering the Christian religion would not be infringing any state ‘neutrality’, but he would be exceeding his constitutional authority.

(2) Law and the Christian religion, though they are not the same thing, are not strangers to each other.  Because the historic formularies are incorporated into English law, the existence of the Christian doctrine stated in them should not have to be proved by evidence.  Evidence will only be required where there is a dispute as to what the formularies teach on a particular matter.

The formularies affirm the Christian doctrine of sexuality (in the marriage service) and the moral law divinely revealed in the Old Testament (Article 7).  Certain passages might have been relevant to Mr and Mrs Johns’ case, that children should be brought up ‘in the fear and nurture of the Lord’ and ‘virtuously brought up to lead a godly and a christian life’ (marriage and baptism services).  Another passage holds that ‘My duty towards my neighbour  is … to keep my body in chastity’ (BCP catechism).

This last passage might have been relevant to the earlier case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872, which clearly influenced the court’s ‘neutrality’ thesis in Mr and Mrs Johns’ case.  Mr McFarlane was dismissed when he declined on religious grounds to provide ‘psycho-sexual therapy’ to homosexual couples.  His claims of unfair dismissal and religious discrimination were dismissed.

Lord Justice Laws rejected the plea of a former Archbishop of Canterbury, who had supported Mr McFarlane, for the appointment of  ‘a specialist panel of judges … [with] a proven sensitivity and understanding of religious issues’ (p.876).  The Lord Justice himself  could certainly not be accused of undue sensitivity to traditional Christianity, despite sitting on the editorial board of the Ecclesiastical Law Journal.

Like the court in Johns, Laws LJ made only the briefest reference to ecclesiastical law, when he observed that ‘the liturgy and practice of the established Church are to some extent prescribed by law’ (p.877).  So they are, but he failed to mention that the law prescribes the Church’s doctrine as well.

Laws LJ held that the state cannot ascertain religious truth.  This may be true, but the state can receive and accept religious truth.  Ecclesiastical law is the constitutional means by which the state continues to receive this truth, even into the 21st century.

Despite its inability to ascertain truth, Laws LJ stressed the importance of the (secular) state ‘thinking for itself’ and being ‘reasonable’ and ‘objective’  (presumably in contrast to religious belief, which is irrational and subjective), but this rather begs the question, what is objective reason?  By what values and methods is it to be discerned, if religious values are to be disregarded?

The policy of religious ‘neutrality’ assumes that only an irreligious state is capable of not discriminating against religious minorities.  Yet it is questionable whether the state can ever be truly neutral in matters of religion.  If the state affects a religious neutrality, it merely constructs a religion-substitute or ideology of its own, which takes the place of traditional religion, and which may be far from tolerant of religions which contradict it.

The ‘equality’ laws, and their interpretation by the courts, demonstrate this process with painful clarity.  But the equality laws have not, as yet, succeeded in doing away with ecclesiastical law!