Marriage (Same Sex Couples)

Memorandum submitted by Daniel Hill (MB 95)

Author: Dr Daniel J. Hill, Secretary, Philosophy-of-Religion Study Group, Tyndale Fellowship

Summary: In the light of the leading case of Thompson v. Dibdin, the Bill has the consequence that a parish minister of the Church of England could not lawfully refuse a same-sex couple admission to Holy Communion. If this consequence is unintended it could easily be remedied by amendment.

Submission:

1. In the case of Thompson v. Dibdin [1912] A.C. 533 (H.L.) the Reverend Canon Henry Thompson, vicar of Eaton in the diocese of Norwich, refused to admit Mr Alan Banister and the woman that was his wife at law, Mrs Emily Banister, to Holy Communion. Canon Thompson's ground for his refusal was that Mr and Mrs Banister were, in his view, not married at all, but living together out of wedlock. The reason why he did not recognize the law's view of their marital status was that Mr Banister had previously been married to Mrs Banister's sister, and Canon Thompson considered that a union with one's deceased wife's sister could not be a marriage. The law of England and Wales also held this view until 1906, when it was changed in the Colonial Marriages (Deceased Wife's Sister) Act, 1906, which was followed by the Deceased Wife's Sister's Marriage Act, 1907. Canon Thompson thus considered himself to have a lawful cause to refuse admission to Holy Communion. A lawful cause was necessary for a clergyman legally to refuse admission to Holy Communion by the Sacrament Act 1547, s. 8 (http://www.legislation.gov.uk/aep/Edw6/1/1/section/VIII)). The House of Lords held, against Canon Thompson, that:

It is inconceivable that any Court of law should allow as a lawful cause the cohabitation of two persons whose union is directly sanctioned by Act of Parliament and is as valid as any other marriage within the realm (per Earl Loreburn at p. 540).

2. The Sacrament Act 1547, s. 8 is still in force today, so a minister in a parish of the Church of England still cannot legally refuse admission to Holy Communion to anyone without lawful cause.

3. Thompson v. Dibdin is still binding today, so 'the cohabitation of two persons' cannot be a lawful cause for the refusal of admission to Holy Communion if their 'union is directly sanctioned by Act of Parliament and is as valid as any other marriage within the realm'.

4. Although the Marriage (Same-Sex Couples) Bill makes considerable provision for freedom of conscience for religious ministers in general, and ministers of the Church of England in particular, it makes no provision concerning the refusal of admission to Holy Communion.

5. In consequence, if the Bill is passed in its current form it seems certain that a parish minister of the Church of England could not lawfully refuse a same-sex couple admission to Holy Communion.

6. If a parish minister of the Church of England unlawfully refused a same-sex couple admission to Holy Communion that minister could be prosecuted (as was Canon Thompson) under a Clergy-Discipline Measure or Act in the Court of Arches (Province of Canterbury) or Chancery Court (Province of York).

7. Although parish ministers are to some extent under the authority of the Ordinary (Bishop) of the Diocese, the Ordinary would not be able to offer any protection at law if he supported any parish minister's decision in refusing a same-sex couple admission to Holy Communion.

7. If Parliament wishes to protect the religious freedom of a parish minister of the Church of England lawfully to refuse a same-sex couple admission to Holy Communion then it would be easy to do so by inserting an amendment to that effect in the Bill.

March 2013

Prepared 6th March 2013