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Tag: Marriage Same Sex Couples Act 2013

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.

Clerical Capability

The Ecclesiastical Offices (Terms of Service) Measure 2009 suggests 3 procedures for removing clergy on account of their unfitness for office:

(1) the prosecution of ‘reserved’ offences against doctrine, ritual and ceremonial, under the unrepealed provisions of the Ecclesiastical Jurisdiction Measure 1963

(2) proceedings under the Clergy Discipline Measure 2003 and

(3) the capability procedure, or procedures, provided under the 2009 Measure itself (s.3(3) and (6)).

The capability procedures are described as ‘procedures to assess the performance of office holders, including remedies for inadequate performance’ (s.2(2)(d)).  Under the Terms of Service Regulations 2009, capability procedure takes the form of ‘an inquiry into the capability of an office holder to perform the duties of his or her office’ (reg 31(1)).  The bishop may instigate an inquiry ‘if he considers that the performance of an office holder affords grounds for concern’.  Any inquiry must be conducted in accordance with a statutory Code of Practice (reg 31(3)).

The 2009 Measure does not completely abolish the old class distinction between beneficed and licensed clergy.  However, it seeks to provide that, once they are beneficed or licensed, all clergy will enjoy the same security of tenure and be subject to the same professional discipline.  This point is made by describing the terms of service under which beneficed and licensed clergy hold office as ‘common tenure’ (s.1(3)).

However, it has been argued elsewhere in this blog that ‘common tenure’ is endangered by the confused relationship between the Clergy Discipline Measure and the capability procedure, i.e procedures (2) and (3) above (see posts filed below under this category).

The statutory Codes of Practice concerning the 2003 Measure and the capability procedure are not reassuring on this point.  The Clergy Discipline Code suggests, ominously, that the boundary between discipline and capability procedure

‘will need to be determined on a case by case basis.  It is in the interests of justice for there to be flexibility between the capability procedure under the [Terms of Service] Regulations and disciplinary proceedings under the [2003] Measure, so that cases are dealt with in the most appropriate way’.  (paras 259-60, emphasis supplied).

It is argued that this view is mistaken.  On the contrary, ‘the interests of justice’ demand consistency and certainty.  Clergy discipline, like all professional discipline, is a penal, quasi-criminal jurisdiction which exists to maintain professional standards and public confidence.  This demands that everyone, both the subjects of the jurisdiction and the public, should know what to expect and that the subjects of the jurisdiction should be treated the same.

The Clergy Discipline Code suggests that it is for the bishop to decide whether a complaint should be pursued under the 2003 Measure or under the capability procedure (para 261).  The Capability Code provides that the person appointed by the bishop to oversee a particular case (usually the archdeacon) may suspend a capability inquiry if he decides that the matter should be dealt with under the 2003 Measure or the Ecclesiastical Jurisdiction Measure 1963 (para 22.1).

Neither Code provides for the accused clergyman to have a say in the matter.  The only protection afforded to him is that both Codes agree that he should not be subject to disciplinary proceedings and capability inquiry at the same time.

The danger is that the ‘flexibility’, or rather, the arbitrary ‘case by case’ approach which results from the uncertain boundary between the Clergy Discipline Measure and the Terms of Service Measure will undermine the common professional discipline that was the raison d’etre of both Measures.  Different clergy will be treated differently in respect of the same alleged misconduct.  Worse, accused clergy will only be able to defend themselves in the ecclesiastical courts if their bishops and archdeacons permit them to do so.  The uncertain boundary may cause the capability jurisdiction to become larger and larger as that of the ecclesiastical courts becomes smaller and smaller. 

What is the correct purpose of the capability procedure, if it is not to trespass on proceedings under the Clergy Discipline Measure?  One obvious use for a capability procedure is to assess an office holder’s medical fitness.  It is not misconduct to be in poor health.  The Terms of Service Regulations expressly provide for a medical capability procedure (cf reg 28).  Another use of the capability procedure is to address pastoral difficulties between an office holder and his parishioners.

In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 the Court of the Arches firmly held that disciplinary proceedings cannot be used to resolve a difficult pastoral situation by removing an incumbent who has alienated his parishioners but cannot be got rid of by other means.  In the wake of that case, the Incumbents (Vacation of Benefices) Measure 1977 was passed. 

The 1977 Measure introduced a procedure whereby incumbents and team vicars could be removed from office or subject to special restrictions, if it was found on inquiry that their conduct had contributed over a substantial period of time to a serious breakdown in pastoral relations.  ‘Serious breakdown’ was defined as a situation which impedes the promotion of the Church’s mission in the parish (s.19A).

Unfortunately the inquiry procedure provided by the 1977 Measure was so lengthy and expensive that it was hardly ever used.  The case of Cheesman v Church Commissioners (1999) Privy Council 12 records that the Bishop in the case was forced to abandon proceedings against the Rev Mr Cheesman on account of their sheer length and expense (p.20).  The Bishop complained bitterly that the 1977 Measure was ‘a deeply flawed piece of legislation’ (quoted at p.22).  The Privy Council itself acknowledged that ‘It is [the Measure’s] structure which makes the implementation of the 1977 proceedings so cumbersome and uncertain in outcome’ (p.6).

As mentioned, the 1977 Measure applied only to incumbents and team vicars.  This was long before common tenure was introduced.  Licensed clergy who fell out with their parishioners would simply have their licences terminated.

However, s.11(6) of the Terms of Service Measure provides that the 1977 Measure does not apply to any clergy who are subject to common tenure.  This means that the 1977 Measure will soon become obsolete (to the extent that it is not already!) as all clergy will eventually be subject to common tenure. 

The effective repeal of the 1977 Measure under s.11(6), and the decision in Bland, imply that pastoral breakdown will in future be addressed by the capability procedure.

This may have implications for clergy who take advantage of the Marriage (Same Sex Couples) Act 2013 to enter into homosexual ‘marriages’.  We have argued elsewhere that such clergy are safe from the ecclesiastical courts as the law now stands.  However, they may not be so safe from the capability procedure.  It is arguable that the procedure could be used to remove them from office if inquiry were to show, at least to the satisfaction of the Church authorities, that their status had caused pastoral difficulties.

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.

Clerical Celibacy

The author of this blog recently witnessed two ordinations at a Catholic cathedral, administered by the diocesan bishop.  Both candidates were ordained deacon.  They were ordained as transitory, rather than permanent, deacons, i.e in the hope that they will shortly be ordained to the priesthood.

One of the new deacons was a diocesan seminarist.  The other was a married Anglican vicar (or former vicar) who had joined the Anglican Ordinariate which is formally entitled the Personal Ordinariate of Our Lady of Walsingham.

According to the order of service, the seminarist was required to take a vow of celibacy before the bishop ordained him.  This was in accordance with the Code of Canon Law 1983, which requires a candidate for ordination to undertake the obligation of celibacy publicly, unless he has already taken a monastic vow or is a married man destined for the permanent diaconate (canon 1037).  This is apparently a recent requirement of canon law, and reflects the Church’s concern over defections from the priesthood in the years following the second Vatican Council (cf. The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel, 1985, Paulist Press, New York, p.728).

Thus the obligation of celibacy precedes ordination.  The obligation does not result from, nor is it effected by, ordination.  Celibacy is a precondition, not a consequence, of ordination. 

This means that, if a deacon or priest wishes to leave the clerical state, he will remain bound by his vow of celibacy even if a decree of laicisation is granted.  A laicised cleric who wishes to marry must obtain a separate dispensation from the Pope, to release him from this vow (cf canon 291).

Canon 277 provides that the bishop may make detailed rules concerning the observance of celibacy by his clergy.  Clergy are required ‘to behave with due prudence’ towards any person who might endanger their celibate state or set tongues wagging.  Celibacy, like justice, must not only be done but be seen to be done.

The married former vicar was not, of course, in a position to take the vow of celibacy required by the 1983 Code.  Marriage constitutes a ‘simple impediment’ to ordination (canon 1042).  However, all impediments to ordination may be dispensed from (canon 1047).  A papal dispensation was therefore obtained.  The dispensation was not expressly referred to in the ordination service (perhaps it was thought indelicate to refer to it, the vicar’s wife and children being present).  However, the order of service made clear that the ordination was ‘with the permission of the Holy See’.

The Anglican Ordinariate is primarily regulated by the papal constitution Anglicanorum Coetibus (2009) and by certain ‘complementary norms’ made thereunder.  Even in the Ordinariate the general rule is that only celibate men will be ordained.  However, papal dispensations permitting the ordination of married men are envisaged ‘on a case by case basis’ (Anglicanorum Coetibus, Article 6(2)).

The request for a dispensation is made by the Ordinary (i.e the Head of the Ordinariate), not by the candidate himself.  The request itself must be based on ‘objective criteria and the needs of the Ordinariate’ (norms, 6(1)).  The ‘objective criteria’ which govern any request for a dispensation must themselves be approved by the Holy See.

Even when the dispensation has been granted, the diocesan bishop is not obliged to ordain the candidate. In this case there was no papal mandate to the bishop to ordain the former vicar, merely a permission to do so.

Dispensation from celibacy is only ever granted for ordination as a deacon or priest, not as a bishop.  All bishops are required to be celibate.  A commentary appended to the complementary norms explains that ‘Given the entire Catholic Latin tradition, and the tradition of the Oriental Catholic Churches, including Orthodox tradition, the admission of married men to the episcopate is absolutely excluded’ (Father Gianfranco Ghirlanda SJ, para 4).

The present Head, or Ordinary, of the Anglican Ordinariate is himself a married man, and so can only be a priest, not a bishop.  Thus he cannot ordain his own priests, but has to request local diocesan bishops to do so instead.  However, out of respect to his former status as a bishop of the Church of England, the Ordinary is permitted to wear the bishop’s mitre and pectoral cross (cf. norms, 11(4)).  

In the Latin Church, a married man may be ordained to the permanent diaconate, without a special dispensation being necessary, but not until he is at least 35 years old, a much higher minimum age than for celibate clergy (canon 1031.2).  His wife’s consent to the ordination must be obtained in writing (canon 1050).  An unmarried permanent deacon must remain celibate (canon 1037).

Clerical celibacy has never been universal in the Church, and canon law recognises this.  The Code of Canons of the Eastern Catholic Churches, promulgated in 1990, acknowledges that married men may be ordained priest (1990 Code, canon 758.3).  However, clerical marriage in the Eastern Churches is by no means as widespread and general as it is in the Anglican Communion.  It is subject to the laws of the particular Church, and to any special rules issued by the Holy See.  As the commentary cited above makes clear, marriage is only for lesser clergy, not bishops. 

The diversity of practice between the Latin and Eastern Churches is explained thus: ‘Clerical celibacy … [is] supported by the tradition of the whole Church’, while ‘the hallowed practice of married clerics [obtained] in the primitive Church and in the tradition of the Eastern Churches’ (1990 Code, canon 373).  Thus clerical marriage has a place in the Church’s tradition, but only a limited place.  Clerical celibacy, by contrast, is a universal tradition.  The practice of clerical celibacy existed in the primitive Church and has always existed in the Eastern Church, alongside the practice of clerical marriage.

It is well known that compulsory clerical celibacy was abolished in the Church of England at the Reformation.  (Hence the need for papal dispensations for married former vicars.)  However, the language of the Clergy Marriage Act 1548 permitting clerical marriage is surprisingly grudging.  There is no positive affirmation of the value of married clergy, just a weary recognition that celibacy had become unenforceable.  Article 32, promulgated later in the 16th century, is a little more positive, providing that ‘it is lawful for [clergy] as for all other Christian men, to marry at their own discretion, as they shall judge [marriage] to serve better to godliness’.

Only as recently as 1964 was any restriction placed on the ‘discretion’ confirmed by Article 32.  In that year, evidently worried by the rising divorce rate and the laxity of the secular divorce law, the Church of England approved the Clergy (Ordination and Miscellaneous Provisions) Measure.  S.9 of the 1964 Measure, entitled ‘Certain Impediments to Order’, provided that ‘no person shall be admitted into Holy Orders’ if divorced and remarried, or married to a divorced person, if a former spouse was still alive.

This rule was mitigated by the Clergy (Ordination) Measure 1990, which enables a bishop to obtain a faculty (i.e a dispensation) from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such a person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)  By contrast, Anglicanorum Coetibus makes no such concessions, providing firmly that ‘Anglican clergy who are in irregular marriage situations may not be accepted for Holy Orders in the Ordinariate’ (norms, 6(3)). 

The Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church (at least for the time being).  However, there is no impediment in that Act, or elsewhere in English law, to forbid the ordination of a person who is in a same sex marriage, or to forbid clergy from entering same sex marriages.