Same Sex Marriage: Divorce for Church and State?

Triggered by the Church of England’s response to a government consultation on same sex marriage, there has been speculation whether ‘disestablishment’ will ensue.

Much of the comment has taken a perfervid, hyperbolic tone as in ‘Gay marriage plan could divorce Church from State’ and ‘The Church of England faces its biggest rupture with the State in 500 years…’ (Times 12 June 2012.) An MP has called for disestablishment (Douglas Carswell, Evening Standard 13 June), and The Observer argues that the Church ‘cannot stand against the settled will of England and remain the national church’ (17 June). What follows tries to offer some perspective on this controversy and its implications.

The same sex marriage proposals

These were contained in a Government Equalities Office consultation document ‘Equal Civil Marriage’, published in March and seeking responses by 15 June 2012. The document asked for responses on the principle of same sex marriage but was mostly concerned to seek views on its modalities. It insisted that there was no question of forcing religious organisations to participate in such marriages. On the contrary, the marriages would be available solely via civil ceremonies (paragraph 1.7).

The Church of England’s response (12 June 2012)

In its thirteen page response, the Church reiterated its opposition to the principle of same sex marriage for the following main reasons:

  • It would alter the intrinsic nature of marriage as the union of a man and a woman
  • The proposals were wrongly based on the notion that civil and religious marriages were two separate categories of marriage when they were merely different ceremonies through which an indivisible single status was attained
  • Civil partnerships already provided adequate remedy and there was no need to permit same sex marriage as well
  • The change could not be confined to civil ceremonies because extension to religious ceremonies would in practice become compulsory.

The response also made a number of other points about the social importance of heterosexual marriage and how its status should not be impaired:

Because we believe that the inherited understanding of marriage contributes a vast amount to the common good, our defence of that understanding is motivated by a concern for the good of all in society…The distinctiveness and complementarity are seen most explicitly in the biological union of man and woman which potentially brings to the relationship the fruitfulness of procreation. (paras 5 and 10)

Finally, an annex longer than the formal response rehearsed the Church of England’s legal status and capacity in marriage law and developed its major objections. In particular, it argued that the operation of the European Convention on Human Rights (ECHR) as understood through the jurisprudence of the European Court of Human Rights (ECtHR) would be bound to force religious bodies to offer same sex marriage ceremonies.

Reception of the Church of England’s response

The reception has been bemused where not hostile. ‘Gay’ people themselves do not speak with one voice, some not wishing to insist that marriage be permitted though most possibly favouring it being made available even if they do not wish to take advantage of such a change themselves. Survey evidence suggests strong 70 percent public support for the change. The burden of published legal opinion considers the arguments from the ECHR mistaken where not specious.

Context

The Church’s response arises partly from its continuing internal differences on gender and sexuality issues. Female ordination has not conferred equality of status with male clergy and there is continued opposition both to the appointment of female bishops and, if appointed, their equality with male bishops. Homosexuality is still abhorred and its open practice amongst clergy formally banned. Gender and sexuality controversies in the Anglican Communion outside England continue to threaten schism. In this situation, it would be impossible for the Church officially to welcome same sex marriage – though the Church’s consultation response claims that its objections are independent of such considerations and stand on their own merits (para 4).

Disestablishment?

‘Disestablishment’ commonly means that all the Church’s relations with the State – including with the monarchy – would be abolished. This usage assumes that ‘establishment’ itself is a complete, wholly self-consistent and coherent package. In fact it is not. Rather, what now exists is the disaggregated residue of the historical position where the Church was, through the parochial system, the State’s principal partner in the civil government of a confessional state.

It is difficult to see how same sex marriage could threaten the remaining establishment as a whole. At most, if the Church persisted in its objections and wished to be sure to avoid having to conduct such marriages, then it might withdraw from conducting any marriages. However, that would presumably be incompatible with the value that the Church ascribes to marriage. In addition, it does not seem that withdrawal would be necessary because the Church has not been convincing that the ECHR would indeed have the effects it has claimed. Indeed, its response’s pedantic attack on the consultation document’s alleged misunderstanding of religious as opposed to civil marriage looks very like defensive obfuscation.

The future of establishment

While same sex marriage by itself does not seem a credible threat to Church of England establishment, there are other reasons why establishment should be reconsidered. These include the pluralisation of religious belief, the growth of unbelief (fifty per cent of the population now say they belong to no religion), and the difficulty of maintaining aspirations of equality where an important institution has unique privileges. We may have religious freedom in the UK, but we do not have religious equality. Although the monarch remains the Supreme Governor of the Church of England, that title is devoid of any substance and the Church is nowadays essentially autonomous. A private Church committee will choose the next Archbishop of Canterbury, not the Prime Minister or the Queen.

To mitigate the constitution’s hostility to Roman Catholicism, the government is committed – with the fifteen other realms where the Queen is head of state – to removing the law that prohibits succession to the throne if married to a Catholic. While a desirable change, it draws attention to the persistence of the remaining anti-Catholic provisions: no Catholic can become monarch and all monarchs have to be in communion with the Church of England – which rules out not only Catholics again but anyone not a Protestant trinitarian Christian.

Would it matter if a Catholic was monarch even if the title of Supreme Governor were retained? Would further change injure the monarchy in a situation where no-one believes that monarchs are really chosen by God? Perhaps the monarchy at least might be separated from any compulsory relationship with the Church whose role the Queen now describes – a new claim – as to be to protect the religious freedom of other religions. The Church could remain a national body in England if it wished. It could continue to carry out public rituals deemed to have the sort of content that all may recognise as socially sacred without necessarily buying into organised religion itself. However, apart from drawing attention to the case for change, disagreements over same sex marriage will not drive any larger change by themselves.

R. M. (Bob) Morris

Honorary Senior Research Fellow

Further information: 

 

4 thoughts on “Same Sex Marriage: Divorce for Church and State?

  1. I think you underestimate the full scope of the constitutional crisis that could result from disestablishment, and the potential of the gay-marriage issue to lead to disestablishment, either directly or indirectly. The Queen’s status as Supreme Governor is the apex – or should that be cornerstone – of the entire constitutional edifice, and the underpinning of sovereignty more generally. E.g. the Acts of Settlement, Succession and Coronation Oath exempt ‘subjects’ from any loyalty to the sovereign authorities if the monarch ceases to safeguard the established Protestant religion.

    Could the Queen in conscience give her assent to legislation that directly contradicts authoritative Protestant-Christian teaching in this matter? And if she did, has she potentially violated her own Oath?

    But maybe we would see a brilliant Anglican fudge.

  2. I think you underestimate the full scope of the constitutional crisis that could result from disestablishment, and the potential of the gay-marriage issue to lead to disestablishment, either directly or indirectly. The Queen’s status as Supreme Governor is the apex – or should that be cornerstone – of the entire constitutional edifice, and the underpinning of sovereignty more generally. E.g. the Acts of Settlement, Succession and Coronation Oath exempt ‘subjects’ from any loyalty to the sovereign authorities if the monarch ceases to safeguard the established Protestant religion.

    Could the Queen in conscience give her assent to legislation that directly contradicts authoritative Protestant-Christian teaching in this matter? And if she did, has she potentially violated her own Oath?

  3. With respect to David Rickard, this argument confuses form with substance. It is implausible to expect, least of all to insist, that provisions made over 300 years ago should retain unaltered meaning when their original context has evaporated. Thus, for example, the Supreme Governor role – apex of the now dismantled confessional state – has entirely lost its original significance.

    There are no circumstances in which the sovereign could veto legislation because of any ‘violation’ of a coronation oath. George IV did not veto Catholic emancipation in 1829, William IV radical Irish Church reorganisation in 1833, Victoria Irish disestablishment in 1869 or George V Welsh disestablishment in 1920. Nowadays it is clear that the sovereign is bound by the advice of responsible ministers and the will of Parliament.

  4. Surely the issue regarding not allowing Catholics to inherit the monarchy is less about religious discrimination and more about protecting the UK from being influenced in any way by the interests of an outside state (i.e. the Vatican in this instance.) Catholicism, specifically, remains the political voice of the Vatican nation-state – completely regardless of the associated spritual belief system – and as such a Catholic’s primary loyalty lies with the Pope first, and the UK second. For this reason, the UK prohibits a head of state whose priority is not the citizens and interests of the state itself.

    With regards to the marriage argument, well I personally do think that a proper distinction between cival and religious marriage is essential in the future, and what we see today is just left over from history. Separation advice often deals with the financial, emotional and family aspects of divorce – it should be the job of a church to discuss the implications of divorce in a faith system, but those implications should have absolutely no legal bearing on the contractual obligations of either party.

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