Marriage (Same Sex Couples)

Supplementary evidence submitted by Dr Augur Pearce (MB 75)


In relation to the Church of England, I believe that the parishioner’s right to have his marriage solemnized in his parish church (or a church with which he has a sufficient connection) should continue, modified by clause 1(1), but that clergy who would normally have to officiate should be dispensed from doing so if they have conscientious scruples.

If a minister does not have such scruples, the parishioner’s right should prevail and be a sufficient shield for the minister against pressure on the part of other ecclesiastical authority. There should be no exemption in relation to the calling of banns, itself a purely legal formality.

Thus I do not accept that ‘opting in’ by any ecclesiastical authority other than the individual officiating minister should be required.

I also do not accept that there should be any further ‘opting in’ to the use of a Church of England rite by willing ministers in forces chapels, in shared churches, or in the case of a housebound, detained or terminally-ill person. There is no common law obligation in any of these cases, but in relation to forces chapels it would be wise for the Bill to make clear that a serving chaplain cannot be ordered by superior authority to officiate at such a marriage.

I believe such an outcome would be compatible with European Convention rights. It would take full account of the conscientious positions of the couple, and of both willing and unwilling ministers. It would take account of the couple’s Article 14 right not to be discriminated against by public authorities in the exercise of other Convention rights, in this case the Article 12 right to marry.

It would not treat the positions of local congregations opposed to same-sex marriage as decisive, nor those of the General Synod, its electorate or its House of Bishops; but I do not believe legitimate rights of any of these groups are engaged by what I propose. It could not be inconsistent with what has been called ‘the canon law of the Church of England’, because there is no law governing the Church of England distinct from the law of the land.

Whether my suggestions should, or should not, cover the Church in Wales depends how Parliament assesses the logic of the 1914 settlement.

About my evidence

1. On 14th February I gave oral evidence to the Committee as a nominee of the United Reformed Church. My evidence then concerned where the URC currently stands on the underlying question of same-sex marriage, the polity of that Church and the diversity in its members’ views lying behind that position, and aspects of the Bill which I believe can be improved, in the interest of providing a framework for marriage formation within which religious groups who do not accept same-sex marriage and religious groups who do may each act accordingly.

2. During my evidence two members of the Committee addressed to me questions concerning the Church of England and Church in Wales. The position of these bodies in relation to same-sex marriage is not something that has ever been discussed in the councils of the URC: indeed they might feel it wrong to make any corporate statement on such a matter. Because of this, I said that I myself did not feel it right to make such a comment whilst I was before the Committee as a URC witness.

3. When pressed, however, I admitted I did have a personal view on the issues raised by members, and indeed generally on the Bill’s provisions concerning the Church of England. At the Chairman’s suggestion I undertook to make this view clear in further written evidence. I do so in this Memorandum. This time I do NOT speak for the URC, and I doubt whether any council or representative of the URC would reason in these terms. But I write as an elector and as a parishioner of an English parish. [1] I write also after some ten years of legal practice with a specialism in matters affecting the Church of England followed by twenty years of academic study and research in this field.

The questions put to me, and my answers in brief

4. The questions put to me were as follows. Mr Kwarteng asked my personal view about the Bill’s ‘protection’ for the Church of England against having to facilitate same-sex marriage. Mr Kirby asked whether I thought the Church of England and Church in Wales needed ‘a different route to opt in’ because of the unique legal framework within which they operate.

5. My answers on these points appear in the Summary above and are not repeated here. But clearly each of my points requires explanation. I shall seek to justify each proposition in turn.

The right to solemnization

6. In principle any parishioner has hitherto enjoyed the right to solemnization of his marriage in the parish church. This is the corollary of the parish minister’s duty to officiate (in person or by a deputy, typically an assistant curate). The duty was established by case law, [2] but implicitly recognised by the statutory dispensations referred to at paras 17-18 below. It is extended by legislation to parish centres of worship [3] and to the churches of parishes with which a party has a qualifying connection. [4] Strictly speaking, the option for a regular worshipper to marry in his ‘usual place of worship’ [5] was not accompanied by an additional duty on the minister of that place, though the point is unilkely to be taken.

7. Some of the language of the Bill, and indeed of the Measure of 2008, reads as though the ground were being prepared for a challenge to the existence of this duty and corollary right. The 2008 Measure refers to ‘the like, but no greater, right … as [the person intending marriage] has to have the marriage solemnized in the parish church of the parish in which he or she resides’. The Bill refers at clause 1(4) to ‘Any duty of a member of the clergy to solemnize marriages (and any corresponding right …)’ (my italics). There has indeed been some academic speculation that the caselaw does not establish what over two centuries of legal writing has claimed for it; but I personally find the speculation unconvincing. I believe there are indeed such a duty and right, enforceable by either ecclesiastical disciplinary process or a mandatory order in judicial review proceedings or both. Of course, the cautious language just quoted may merely take account of the dispensations referred to below.

Why should such a right exist?

8. This right is consistent with parishioners’ other rights. Although the parish minister has legal possession (and, unless there is an impropriate rector, the freehold) of the parish church and churchyard, he possesses them not for his own enjoyment but ‘for the use of the parishioners, subject to the control of the Ordinary’. [6] Any parishioner, regardless of baptism or personal convictions, is entitled to attend divine service in the church, [7] to be heard when alterations to the fabric are under consideration, [8] and to be buried (if there is space) in the parish churchyard. [9] All parishioners have a voice in the choosing of churchwardens, [10] and until recently any parishioner could serve in that capacity. [11]

9. There are, to my mind, two reasons why such rights should exist. First, I see the Church of England as, amongst other things, a public service, ‘the religious establishment of the realm’, [12] and the General Synod’s electorate are not the only people with an interest in it. As Chief Justice Holt said, ‘parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient, and a parson from whom they had right to receive instruction’. [13] Significantly, this passage couples parishioners’ rights with a duty on the parish officer (the minister) who is to satisfy them: in the case of a liturgical rite such as the solemnization of matrimony, the case for a duty is stronger since normally only he (and those with his authority) can officiate in the church. [14] It is no more acceptable for ministrations in the parish church to be denied to certain classes of inhabitant on the basis of distinctions which the law does not make than for National Health Service staff to decide to treat only female patients. I elaborate on this assertion in paras 39-43 below why I make this assertion, and deal at 28-33 with the counter-argument that in this case ‘canon law’ does make a distinction.

10. The second reason is more resource-focussed. England’s parish churches are themselves public ecclesiastical assets: some provided, almost all once maintained, out of public funds or compulsory levies. Some early churches were erected with royal funding before there was any real distinction between Crown revenues for governmental and personal purposes; many later churches were erected using a parliamentary grant from general taxation (most recently under the Church Building Act 1831); and the naves of all churches were, at common law, repaired by a levy on all ratepaying parishioners until the Compulsory Church Rate Abolition Act 1868.

11. Since such funding has ceased, my second reason is an historical argument whose force diminishes with time, but I submit it is not yet irrelevant. Voluntary donations from churchgoers (with the same grant aid as is available for any historic building) have admittedly borne the lion’s share of repair costs since 1868. But had the forebears of today’s parishioners not been obliged to pay church rate, some churches would have fallen into ruin before the mid-nineteenth century and not be standing today at all. Others would not exist had our ancestors’ taxes not been appropriated to build new churches.

12. One important clue to the status of parish churches and churchyards as public property is that they are not regulated by charity law. The law deals with their consecration, vesting, control and use, repair, alterations and disposal, but in its ecclesiastical branch, not in the law relating to charities and their property. Charities are private initiatives for the public benefit; but parish churches, like regimental barracks or town halls, benefit the public by public initiative.

13. Another clue is that Parliament felt itself (rightly) entitled to dispose afresh of the parish churches and churchyards of Wales when the decision was taken in 1914 to cease any public religious establishment in that principality. The land was vested, with other property, in statutory commissioners [15] whose primary function was to realise or reallocate Welsh ecclesiastical property as Parliament directed. I deal with its subsequent fate in para 44 below.

Past modifications to the right

14. The right to marry has not remained static. Marriage was once denied to those who had made vows of priestly or monastic celibacy. It was once allowed to children of the Sovereign even when they married against the royal wishes. It was once denied to a divorced adulterous spouse, or to couples related in certain ways through another marriage. Each of these impediments was modified or abolished by authority of Parliament. Legislation has only recently made it possible for a transgender person to marry in the assigned gender.

15. Each of these changes occasioned some religious controversy. Roman Catholics would not accept that a priest could validly marry with no dispensation; nor that the 1785 marriage of George, Prince of Wales to Maria Fitzherbert was void and, consequently, his marriage ten years later to Caroline of Brunswick valid. A minority of Church of England clergy rejected the automatic right to remarry accompanying judicial divorce from 1857; more rejected the changes to affinity law from 1907; more still condemned the widened availability of divorce from 1937. There are some who believe a child’s physical characteristics at birth indicate a gender determined by the Creator, which no human power can alter: concluding that a female-to-male reassignment is meaningless, and the subject’s marriage to a woman effectively a same-sex union.

16. But on each of these occasions the law of the land changed in all its branches, including the ecclesiastical. If the sovereign Parliament enacted that a marriage was valid, then that marriage was not only valid for purposes of property, financial provision between spouses, succession, pensions, social security, parental responsibility, immigration, nationality and bigamy; it also bore implications for ecclesiastical discipline and the obligations of the clergy. [16]

Past concessions to clerical scruples

17. As opposition amongst Church of England clergy to these reforms grew, so Parliament responded with more generous dispensations from the parish minister’s obligation to solemnize. No dispensations accompanied the Reformation changes or the Royal Marriages Act 1772. But in 1857, though a decree absolute of divorce allowed the parties to marry again as if the former marriage had been dissolved by death, no clerk in holy orders of the Church of England was compelled to solemnize the guilty party’s second marriage. [17] A judicious balance was struck between the parishioner’s rights and the minister’s scruples, in that the refusing minister (although usually free to prohibit any other minister officiating within the parish) was bound to permit any other minister entitled to officiate within the diocese to do so. [18] This would obviously be a willing minister acceptable to the bridal couple.

18. From 1907 a less even balance was struck. Archbishop Randall Davidson secured an amendment to the Deceased Wife’s Sister’s Marriage Bill removing the obligation on the parish minister to let a willing substitute replace him. The parish minister could, therefore, in effect deny the use of the parish church altogether to a parishioner taking advantage of the new Act. The change was strongly criticised in the House of Commons, but allowed to remain to secure the Bill’s passage before the session ended. The number of affected marriages was, of course, very small, and it usually proved easy for a couple in these circumstances to establish residence in a parish with a less scrupulous minister: hence there was only modest resistance when the ‘1907 approach’ was extended in 1937 to divorce, whatever the ground. Nor did the Gender Recognition Act 2004 require a parish minister to let a colleague substitute for him. [19]

19. In passing, one other qualification to the parishioner’s right should be noted. In 1836 a superintendent registrar’s certificate joined other possible preliminaries to a Church of England marriage. For twenty years there was no reason to believe the parishioner’s right would not apply to a marriage under certificate as it did to marriages after banns or by licence. But then it was provided that the parish minister’s consent was required to marriages under certificate in the parish church (presumably because a certificate was not considered a genuinely ‘ecclesiastical’ preliminary). This right of consent (or conversely, veto) has survived to the present. [20]

20. Although parish ministers can decline to officiate whenever the relevant circumstances obtained, they have no reason to do so apart from conscientious scruples about the marriage. Such might flow from personal conviction or from deference to the counsel of other ecclesiastical authority, such as the convocations or the diocesan bishop. But such authorities can only counsel: they cannot direct a minister to officiate or to refuse, since his duty to officiate flows from the common law and his right to refuse flows from statute. Parliament has never empowered any group of clergymen to override either. The House of Bishops of the General Synod has issued advice regarding the remarriage of divorcees, but recognises it cannot coerce a minister’s discretion, nor make him pretend to scruples he does not in fact have.

Applying the analogy of past reforms to the current proposal

21. My view [21] is that the couple being of the same sex has been, up to now, one marriage impediment amongst others. Certainly it is considered by many to go to the root of what marriage is; yet so (once) was indissolubility, creating an absolute bar on either spouse marrying again whilst the other partner lived. That view did not stop Parliament permitting cuckolded spouses remarrying (in Divorce Acts from the seventeenth century), nor allowing both parties to do so from 1857. The change now proposed is not, therefore, so fundamental that objections to it would not be adequately addressed by the 1857 or the 1907 approach described above. In saying this I recall that the ‘official’ Church of England response to the Government consultation on the current Bill has been disowned by many parochial clergy, as well as more senior figures: clearly there would be a reasonable number of parishes in whose churches same-sex marriage could be solemnized if my arguments were accepted.

22. I personally support contemporary critics of Davidson’s 1907 approach, and would prefer to restore the obligation on parish ministers to let willing substitutes replace them, so that a parishioner could rely on marrying a same-sex partner in his own church, rather than having to establish temporary residence in (or a ‘qualifying connection’ with) another parish. But I accept that to restore the 1857 approach also to divorce and affinity would go beyond the scope of the current Bill, so I would be content with the 1907 approach for now.

The opposition voiced from Church House Westminster

23. I am aware of a range of resolutions passed and positions taken regarding same-sex relations by the General Synod and its House of Bishops, and of spokesmen for both who have made public statements and ‘official’ responses to Government on the current proposals. Where same-sex marriage is concerned, a sufficient summary is that these statements (whose authors I shall group generally under the designation ‘Church House’) oppose equal access to marriage in English law generally, but also indicate particular unwillingness to see same-sex marriage solemnized under Church of England auspices.

24. To judge by the First Reading form of the Bill (which one may assume was discussed more thoroughly with Church House than with representatives of England’s other religious traditions), Church House wishes to see no right for parishioners to have a same-sex marriage solemnized in the parish church, and no discretion in Church of England ministers to solemnize such a marriage even if they believe it right to do so. Church House further wants a ban on solemnization of such marriages (wherever they may take place) with the marriage liturgy prescribed by law. This may possibly extend to preventing same-sex marriages, even by other religious rites, in a forces chapel or jointly-used religious building.

25. So far as jointly-used buildings are concerned, I have already commented in my earlier written evidence and in the oral evidence I gave on behalf of the United Reformed Church. I do not believe any religious group should be entitled to restrict the activities of another simply because they use the same building.

26. Generally, I do support a ‘rites-focussed’ approach whereby (for instance) a Roman Catholic governing authority could forbid the use of the Catholic marriage liturgy at a same-sex deathbed wedding. But I do not support such a ban in respect of Church of England marriage liturgies, because I regard rites authorised by law as common property. The fact that the authorisation of most such liturgies is currently delegated by Parliament to the General Synod [22] does not alter my view. A person is no less a parishioner because illness, detention or military service prevent easy access to his own parish church; many parish ministers and institutional chaplains see officiating in such circumstances as an important part of their pastoral calling.

27. The main issue, however, is with same-sex marriage in the parish church, which in my submission should be possible whenever the parish minister is willing (or, under the ‘1857 approach’, whenever any willing minister can be found). Here it will be argued that such ministers are themselves under authority; that they cannot expect to officiate with impunity at rites which the General Synod, as liturgical authority of their Church, rejects, even if their own individual consciences allow. It will be argued that the rules of that Church allow for the marriage of opposite-sex couples only, and will continue to do so until altered by the Synod; and that the parish church is set apart by consecration for the Church’s authorised rites alone. These arguments really break down into two: (a) that the Church has a separate body of law which would not change even if the general law of marriage changes, and (b) that, even if Parliament could change the law governing the Church of England, it should not do so whilst the General Synod stands opposed.

Canons and ‘the canon law’

28. The first argument was expressed during the consultation, in the Church House submission and the Government’s response, in references to ‘the Church of England’s canon law’. If that was intended to postulate a body of law governing the modern Church of England which is distinct from the law of the land, my answer in brief is that there is no such thing.

29. The law of general application governing the Church of England is found in Acts of Parliament, in Measures ‘intended … to have effect as an Act of Parliament’, [23] and in delegated legislation. It is also found in the indigenous common law and ‘such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm’. [24] This last source comprises those rules of the mediæval canon law which, as Parliament declared in 1533, ‘by sufferance of Your Grace [the King] and your progenitors, the people of this your realm have taken at their free liberty by their own consent to be used among them, and have bound themselves by long use and custom to the observance of the same’. [25] Many such rules – including the impediment to marriage in the couple being of the same sex – were so adopted; others were not. [26] Adopted rules were said by Lord Blackburn in 1881 to be part of ‘the common law, in that wider sense which embraces all the ancient and approved customs of England which form law’. [27] In short, all such binding rules applicable to lay people (including the great majority of parishioners) can be categorised either as common law or as primary or delegated legislation.

30. If Church House’s ‘canon law’ references were specifically directed to Canon B30 of the Revised Canons Ecclesiastical, or to the authorisation under canon of marriage liturgies which presuppose an opposite-sex couple, they have slightly more substance. Canons made in England must have the royal licence and assent and be consistent with the general law of the land; they either restate existing law or bind the clergy in spiritual matters. [28] B30 was made in 1969 by each convocation for its province, before their power to regulate the clergy by canon was transferred to the General Synod. It defines marriage as ‘in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side’, and states its purposes. As additional authority the Canon cites the marriage service of the Book of Common Prayer, but I accept that the opposite-sex understanding of marriage goes back much further, being amongst the canonical rules originating outside England but adopted into the common law before the Reformation. This is an example, therefore, of a canon that restates existing general law, rather than one making new provision for the clergy alone.

31. Clause 1(3) of the Bill asserts that a canon such as B30, which makes provision about the opposite-sex nature of marriage, ‘is’ not contrary to the requirement of consistency with the general law. This is a strange way of putting it, since a canon denying that ‘marriage of same-sex couples is lawful’ would clearly be inconsistent with the law as contained in clause 1(1). The intention is presumably that such a canon should be exempt from the consistency requirement.

32. Without such an exemption, a canon becomes ineffective as soon as the general law changes to produce an inconsistent result. The former canons of 1603-05 were amended on several occasions to take account of statutory changes, [29] but inconsistent canons were already revoked by implication. The idea that there could, within the Church of England, exist some separate ‘law of the church’ which might not change when the law of the land changed was effectively exploded by a judgment of the House of Lords in 1912 that a layman who had married his deceased wife’s sister after Parliament declared that relationship to be no impediment could not be subjected to ecclesiastical discipline as an offender. Even though the then Canon 99 had not been amended, and the Act in question had called such marriages valid ‘as a civil contract’, Lord Ashdown said that those words ‘cannot make duality in marriage’. [30]

33. If exempted from the consistency requirement, Canon B30 would no longer be declaratory of the general law but would have effect as a rule binding the clergy, exposing ministers officiating at a same-sex marriage (for example by another denomination’s rites in its building) to ecclesiastical discipline. I consider this unnecessarily restrictive and that clause 1(3) should go. However, provided clause 1(4) is dropped from the Bill, the common-law duty to marry parishioners would apply to all couples (subject to a ‘conscience clause’) and would justify the ministers who chose to perform it, as the equivalent duty already justifies ministers remarrying divorcees. As to the marriage service, unless the General Synod is willing to provide an alternative wording for same-sex couples, the Bill should itself authorise officiating ministers to make the necessary adaptations.

The role of the General Synod

34. The Synod, it should be remembered, is the old Church Assembly renamed. [31] The architects of the Church Assembly were very clear that it was not a statutory body, but was created before the ‘Enabling Act’ of 1919. [32] It was therefore, and consequently remains today, in essence the leading committee of a voluntary association: a product of the (wholly extra-legal) development whereby, from the 1860s, certain bishops encouraged parish clergy to set up councils of active churchgoers, and themselves summoned lay and clerical representatives to diocesan conferences on ecclesiastical affairs. By 1903 these initiatives had resulted in the creation of a ‘church electoral roll’ of laypeople, who chose the lay element in these councils.

35. Except insofar as they gain powers from a competent legislator, voluntary committees cannot speak for or take decisions affecting people they do not represent. The Synod is representative of two constituencies: (a) those who accept ordination by a Church of England bishop, participating as clergy in the synodical structure, and (b) laypeople voluntarily entered on the church electoral roll. It does not, however, represent all parishioners – those whose rights would be affected by the provisions Church House seeks in the present Bill. It cannot therefore (apart from ‘provision by or under [an Act or] Measure’) make any ‘provision’ affecting them. [33] At best, therefore, what it can do is to express an opinion, which Parliament is entitled to weigh against the evidence available to it of other parishioners’ opinions, and indeed the evidence of dissatisfaction with the Church House position on the part of many Church of England ministers.

Banns or Superintendent Registrar’s Certificate

36. Acceptance of the general principle that willing Church of England ministers should be free to solemnize same-sex marriage would have implications for preliminaries. Most Church of England marriages are currently preceded by banns or a bishop’s licence. The prevailing view is that the issue of a licence is discretionary, but publication of banns is obligatory [34] on the ministers concerned: the conscientious dispensations from officiating do not extend to banns publication. Marriage under superintendent registrar’s certificate is also possible, but parish ministers have a discretion whether to allow this in the parish church. [35]

37. To give substance to parishioners’ rights and willing ministers’ freedom, either the publication of banns for same-sex marriages must also be obligatory or, if the ‘conscience clause’ follows the ‘1857 approach’, the discretion not to allow a marriage by certificate must go. This discretion did not in fact exist between 1836 and 1856 and seems to serve no useful purpose generally; but equally, the present obligation to publish banns for remarrying divorcees does not seem to pose a major conscientious challenge to indissolubilists.

European Convention rights

38. It will no doubt be argued that the amendments to the Bill I have suggested would infringe the collective Article 9 right of ‘Church of England members’ to manifest their religion in worship and observance, by (a) exercising appropriate discipline over their ministers and (b) restricting the use of their own marriage rites to appropriate situations. If the ‘1857 approach’ were adopted opponents might conceivably allege interference with the peaceful enjoyment of possessions under Article 1 of the First Protocol to the Convention, based on the parish minister’s freehold of the parish church. A Convention argument might also just possibly be raised on behalf of the regular congregation of a particular church where same-sex marriages took place.

39. I believe these arguments would be very difficult to sustain. It is the General Synod electorate (through the Synod) which objects to same-sex marriage. This is clearly a faith group entitled to assert the Article 9 right; but the ministers and liturgies of the Church of England are not the exclusive property of that group. Nor does a congregation or a parochial church council own the parish church: the parish minister holds his freehold for the very parishioners whose rights my proposals would uphold. A congregation would not, of course, have to attend a ceremony of which it disapproved.

40. The public liturgy exists for everybody and has been regulated by Parliament since 1548. That control is now delegated to the General Synod, but neither that, nor the Archbishop’s Council’s copyright in certain services, means the liturgy has become a purely sectional interest nor that Parliament has lost its ability to protect the religious rights of society as a whole. [36]

41. Ministerial discipline would be a stronger argument if Church of England ministers were appointed simply by and for the General Synod electorate. But, although they serve members of this electorate, they also serve the wider public. Their appointment, tenure and discipline are governed by the ecclesiastical law of the land, not (like other ministers) the rules of a voluntary society. They are not just office-bearers in a faith group, but officers of the national religious establishment. Their functions in relation to marriage are public functions, shared with civil registrars, though unlike registrars I do not envisage any unwilling minister having to officiate.

42. On the other hand, I believe it is indeed likely (as suggested in the Church House submission) that the Court in Strasbourg would connect Article 14 to Article 12 so as to hold it incompatible with the Convention for member states who recognise same-sex marriage to make this available on different terms from opposite-sex marriage. What voluntary religious bodies do is up to them and protected by Article 9; but what the religious establishment does is something for which the United Kingdom must answer, and the changes I propose would prevent human rights complaints by gay or lesbian parishioners denied rights in the parish church accorded to heterosexual counterparts.

43. To this extent I find myself at odds with those Lords of Appeal who suggested in Parochial Church Council of Aston Cantlow v. Wallbank that the Church of England as a whole has spiritual goals which cannot be goals of government. [37] The voluntary structures associated with the Church of England may indeed have a non-governmental purpose; but its legal position, its role in marriage and the parish church network are explicable only in terms of the earlier identification of the Church with the nation. [38]

The Church in Wales

44. Wales has had no public religious establishment since 1920. Today’s Church in Wales is a voluntary society of Cranmerian Episcopalians similar in most respects to any other religious group. But until 1920 the arguments made in paras 10-11 above could be made with equal force in relation to Welsh parish churches. These were then transferred free of charge to the new church’s Representative Body; [39] but the transfer was subject to existing public rights [40] and, before it took effect, it was enacted that the disapplication of ecclesiastical law in Wales [41] would not affect the law governing marriage. [42]

45. From this it has been concluded that banns can be published and marriage solemnized in Welsh parish churches on the same basis as in their English equivalents, albeit by the voluntary body’s ministers and with its own liturgy, and that the inhabitants of Welsh parishes have the same rights as Englishmen in their parish church. The Marriage Act 1949 covers this by an interpretation provision, and the dispensation from marrying divorcees is expressly applied to the Church in Wales. [43]

46. The Bill’s provisions relating to same-sex marriage in the Church of England are, generally speaking, applied equally to the Church in Wales, whose Governing Body has so far voiced no willingness to facilitate such marriages under its auspices. But clause 8 allows a future decision by the Governing Body to allow same-sex marriage to be accommodated without new primary legislation.

47. The existing public rights in Welsh parish churches can be explained as a quid pro quo for their free allocation to the Cranmerian Episcopalian body. No consideration was given in 1914 to same-sex marriage, and it is hard to say whether (in the unlikely event that Parliament had then envisaged the scope of marriage widening in the near future), extended rights of parishioners would have been made ‘part of the deal’ or not. I believe it is for Parliament now to judge what is fair, given the logic of the 1914 arrangements. I should not object either to the same course being taken as I advocate for the Church of England, or to the Bill’s Church in Wales references being left as they stand.

Drafting implications for the Bill

48. I have not considered all drafting implications, but I should ideally like to see

(a) The current clauses 1(2)-(4), 6(2) and 11(5) deleted, or confined where appropriate to the Church in Wales;

(b) Modification of any religious protections to ensure ministers remain obliged to publish banns for all classes of marriage;

(c) A dispensation for members of the clergy from officiating at same-sex marriage, modelled either on Matrimonial Causes Act 1857 ss.57 and 58 or on Matrimonial Causes Act 1965 s.8 (see paras 17-18 and 22 above);

(d) An Equality Act exemption for clergy who invoke the dispensation just mentioned; [44]

(e) The new s.26(e) of the Marriage Act 1949 to refer to ‘a marriage of any couple’; and

(f) A liturgical provision as proposed in para 33 above.

49. In relation to armed forces chapels I should like to see

(g) Transitional provisions ensuring that any bishop’s licence granted under s.69 of the Marriage Act 1949 applies to the marriage of all couples, or (if bishops are unwilling for this to be the case) an amendment to s.69 permitting marriage by Church of England rites in forces chapels without such a licence; and

(h) An express right for forces chaplains in holy orders of the Church of England and Church in Wales to decline to officiate at same-sex marriages, with corresponding Equality Act exemption.

There is no right for any couple to marry in an armed forces chapel, but the right in (h) would prevent chaplains being ordered to officiate by more senior chaplains or other senior officers.

February 2013

[1] It is important to appreciate from the start that a parishioner is an inhabitant of a parish, and that a parish is a geographical unit (whether or not it has been divided ‘for ecclesiastical purposes’, and whether or not it is still served by a civil parish council or meeting). Everybody living in England (except in some peculiar places, few of which have residents) is a parishioner. I ceased to conform to the Church of England in 2001 but I remain a parishioner of the Parish of the Ascension Cambridge.

[2] Argar v. Holdsworth (1758) 2 Lee 515

[3] Pastoral Measure 1983 s.29(3) (centre to count as parish church ‘for the purposes of … any other … rule of law requiring … any service or ceremony to be held … or other thing done in or at the parish church’)

[4] Church of England Marriage Measure 2008 s.1(1)

[5] Marriage Measure 1930; see now Marriage Act 1949 s.6(4)

[6] Griffin v. Dighton (1864) 5 B&S 103

[7] Cole v. Police Constable 443A [1937] 1 KB 316

[8] Kensit v. Rector of St Ethelburga Bishopsgate Within [1900] P 80

[9] Kemp v. Wickes (1809) 3 Phil Ecc 264

[10] Churchwardens Measure 2001 s.5(1)(b)

[11] Eligibility was limited by the Churchwardens (Appointment and Resignation) Measure 1964, but on the basis of communicant status rather than the church electoral roll.

[12] Town of Pawlet v. Clark (1815) 13 U.S. 292: ‘The phrase “the Church of England”, so familiar in our laws and judicial treatises, is nothing more than a compendious expression for the religious establishment of the realm …’. ‘Establish’ is used here in a different sense from Sir Walter Phillimore’s better-known assertion that ‘a Church which is established is not thereby made a department of the State’; Marshall v. Graham (1907) 2 KB 112.

[13] Britton v. Standish (1705) Holt KB 141

[14] Revised Canons Ecclesiastical, Canon C8 para 4

[15] Welsh Church Act 1914 s.4(1)(b)

[16] See also para 32 below

[17] Matrimonial Causes Act 1857 ss. 57 and 59

[18] ibid. s.58

[19] Dispensations from officiating given by these or successor Acts now appear as Marriage Act 1949 ss. 5A and 5B and Matrimonial Causes Act 1965 s.8.

[20] Marriage Act 1856 s.11; see now Marriage Act 1949 s.17 (proviso)

[21] A rguably borne out by how grounds of nullity are listed in ss. 11 and 12 of the Matrimonial Causes Act 1973.

[22] Church of England (Worship and Doctrine) Measure 1974

[23] Church of England Assembly (Powers) Act 1919 s.1(5)

[24] Mackonochie v. Lord Penzance (1881) LR 6 App Cas 424, 446

[25] Ecclesiastical Licences Act 1533, preamble

[26] A test to determine adoption or non-adoption was laid down by the House of Lords in 1868; Bishop of Exeter v. Marshall (1868) LR 3 HL 17

[27] Mackonochie v. Lord Penzance (1881) LR 6 App Cas 424, 446

[28] Submission of the Clergy Act 1533, ss. 1 and 3; Middleton v. Crofts (1736) 2 Atk 650

[29] e.g. as to doctrinal subscription in 1865, as to extended hours for marriage in 1887 and 1936, as to impediments of affinity (finally) in 1946

[30] Thompson v. Dibdin [1912] AC 533, esp. Lord Ashbourne at 543: ‘[even] the words “as a civil contract” cannot make duality in marriage.’

[31] ibid. s.2(1)

[32] Church of England Assembly (Powers) Act 1919 s.1(1)

[33] See the functions of the Synod as now listed in Synodical Government Measure 1969 Sch 2 para 6.

[34] See the mandatory ‘shall’ wording in Marriage Act 1949 ss. 6(1) and 7.

[35] Marriage Act 1856 s.11; see now Marriage Act 1949 s.17 (proviso).

[36] I do not accept, incidentally, that ‘the constitutional rights of all His Majesty’s subjects’, which the Church of England Assembly (Powers) Act 1919 s.3(3) makes the special concern of the Ecclesiastical Committee, refers only to secular interests.

[37] [2004] 1 AC 546

[38] ‘When we oppose the Church therefore and the Commonwealth in a Christian society, we mean by the Commonwealth, that society with relation unto all the public affairs thereof, only the matter of true religion excepted. By the Church, the same society with only reference unto the matter of true religion, without any other affairs besides.’ Hooker, Laws of Ecclesiastical Polity , Book VIII, c.1599 (posthumous pub. 1648). Phillimore’s rival theory in Marshall v. Graham , above, is answered by the point that the Reformation Parliament, which consistently denounced clerical authority in religion as usurped, would never have ‘established’, or continued the ‘establishment’ (in Phillimore’s sense) of, the sort of episcopally-led institution in which he believed.

[39] Welsh Church Act 1914 s.8(1)

[40] ibid. s.8(2)

[41] ibid. s.3

[42] Welsh Church (Temporalities) Act 1919 s.6

[43] Marriage Act 1949, s. 78(2); Matrimonial Causes Act 1965 s.8(2)

[44] Compare Equality Act 2010 Sch 3 para 24(1)

Prepared 4th March 2013