Last May, Stephen Green and Robin Phillips co-authored a briefing paper titled The Trivialisation of Matrimony: A Response to the Government Consultation Paper. Since then a number of questions have been raised about Government’s proposals and the effect it could have on the church. Below Robin Phillips fields some of the most common questions.
Q: What is the general climate of opinion about this issue?
A: Most people in England and Wales (the areas to which the changes will apply) are still adamantly against changing the definition of marriage. A ComRes poll found that 70% of the public are against the changes. There is also strong opposition within Government. The Prime Minister could be facing the biggest revolt among Tory members since 1990. We also know that thousands are refusing to renew their subscriptions to the Conservative party while some major donors have withdrawn their financial support. Now that the Church of England has made such a decisive stand, the public opposition can only increase.
Q: Can you tell us a bit about the Church of England’s involvement in this issue?
A: Last month Government’s three month long consultation on this issue was punctuated with a dramatic submission from the Church of England, in which the church warned that Government’s actions could lead to a historic stand-off between church and state. The submission suggested that the proposed reforms for England and Wales “would alter the intrinsic nature of marriage as the union of a man and a woman, as enshrined in human institutions throughout history.”
The church’s submission also warned that the proposals could accelerate a schism between the church and the state, culminating in the complete disestablishment of the Church of England and the removal of the Queen as Supreme Governor of the Church.
The Church of England is not known for overstatement so these warnings should be taken seriously. They come after church officials spent months consulting with lawyers on the ramifications of Government’s proposals. One of the chief concerns that arose out of this analysis is that Government will almost certainly be powerless to keep its pledge to limit same-sex ‘marriages’ to civil rather than religious ceremonies. The legal advice given to the Church of England has confirmed that once these proposals are put in place, equality legislation from the EU will kick in to make it illegal for the Church to provide wedding services to heterosexual couples and not to homosexual couples. That is why there is such concern.
The stand-off between Government and the church on this issue is unprecedented since the time of the Reformation nearly 500 years ago. Legal scholars and journalists alike have warned that it could involve “snipping the threads” of the delicate balance between Church and state.
Q: So do you have any idea what is driving the Prime Minister to push ahead with these plans in the teeth of public opinion?
A: According to Cameron himself, he is being motivated by his Christian beliefs. He recently commented, “I have come at this issue of equal marriage principally because I’m a Christian.” But this is indeed a strange sort of Christianity that makes him so eager to overhaul thousands of years of Christian practice and to risk the disenfranchisement of our nation’s established church!
A more realistic assessment is that Cameron is being driven by the desire to appear progressive and modern, the same principles he appealed to when arguing that we need to change the rules for the crown’s succession. Initially Cameron seems to have thought this would help the party in the next election be shedding what is perceived to be the Tory’s ‘toxic’ image. I don’t think he anticipated the strong backlash he would receive.
We also have to remember that the Prime Minister is under a lot of pressure from the liberal democrat component of his government, pushing the party further to the left than it has ever gone before.
Q: Presumably Cameron also wants to shoulder up to the homosexual lobby?
A: Well, that’s the funny thing. You see, before the Coalition Government introduced these proposals, very few people in the homosexual community were even lobbying for same-sex ‘marriage.’ A poll conducted by Catholic Voice in February found that out of 550 homosexual men, only 40% identified a change in marriage law as being a priority.
Even the homosexual lobby group, Stonewall, was not calling for it, though they required little persuading to jump on board the bandwagon. Even now, many leading gay rights activists have remained among Government’s fiercest critics. Alan Duncan, the first Conservative MP to come out as openly homosexual, is opposed to any attempt to redefine marriage. So is Labour MP Ben Bradshaw, who was the first Cabinet minister to enter into a civil partnership. Bradshaw commented, ‘This isn’t a priority for the gay community, which has already won equal rights with civil partnerships. This is pure politics.’ Gay journalist Andrew Pierce recently argued similarly, noting:
Mr Cameron seems to have learned nothing from the follies of the Labour government when it comes to imposing an equalities agenda on Britain’s leading faiths….
Ministers have ruled out extending civil partnerships, which became law in December 2005, beyond the gay community. So we gays will enjoy rights denied to heterosexuals. What an absurd state of affairs.
The truth is that no one has been able to explain to me the difference between gay marriage and a civil partnership. I have asked ministers and friends. None has an answer.
But I do. We already have gay marriage — it’s called civil partnership. Why can’t Mr Cameron just leave it there?
Q: Can Government be trusted when it promises to protect religious liberty?
A: The promises Government has made in this area are worth less than the paper they’re printed on, as MPs with a legal background and Church of England lawyers have understood almost from the outset.
The trajectory of what will happen if these proposals pass is pretty clear, and will almost certainly go something like the following.
First, Government will restrict same-sex weddings to civil ceremonies, ostensibly to protect the freedom of the church. In fact, Government will even go so far as it make it illegal for same-sex weddings to occur on religious premises.
The second step is that almost immediately, a same-sex couple will apply to be ‘married’ in the Church of England and, when they are refused, they will claim that their human rights have been violated. With the assistance of a pressure group like Liberty the couple will then appeal to the European Court of Human Rights at Strasbourg.
Step three is that the European court will rule that British law breaches equality legislation, since it allows service providers (in this case, the established church) to discriminate on the basis of sexual orientation.
Step four is that the European court will then instruct the Church of England to offer its services to all couples who ask, regardless of their gender.
When the fourth step in this process is reached, the Church of England will face a situation comparable to the Catholic adoption agencies that had to either compromise their beliefs or shut down. As Dr Sharon James, spokesperson from the Coalition for Marriage, warned, “once gay marriage is introduced, it won’t be the Government’s remit to say whether it can happen on religious premises or not because it will be the courts who decide any cases brought against individuals and places of religion.” She added: “If this happens we can see people with good conscience being taken to court because of their deeply held beliefs.”
Now in one sense the Home Office is right when it says “We have been clear that no religious organisation will be forced to conduct same-sex marriages as a result of our proposals.” The Home Office is doing just enough so that the European Court of Human Rights can do the rest, but when that happens they can claim it’s been taken out of their hands. Equalities Minister Lynne Featherstone let the cat out of the bag in a BBC Radio 5 Live interview when she said, “it may be that [the issue of same-sex marriage in a place of religious worship] comes back another day.”
Q: But we don’t know for sure that the European Court of Human Rights will rule like that, do we? They may decide to respect religious freedom.
A: Actually we do know. As of last March, it’s no longer even speculation. In the case Gas and Dubois v. France, European judges made a landmark ruling which stated that governments are not required to introduce same-sex ‘marriage.’ However, they also said that if a government chooses to extend the definition of marriage to same-sex couples, then it would be a violation of human rights for homosexual couples seeking ‘marriage’ to be denied rights and privileges offered heterosexual couples.
There is just no way the European Court is going to sit by and allow one of their countries to sustain a two-tier system in which same-sex couples are denied access to a service (i.e., religious weddings) available to heterosexual couples.
Q: If it comes to that, what options does the Church of England have?
A: At that point, the Church of England wouldn’t have very many options outside of simply complying. That is why the Church is working so hard right now to make sure it doesn’t come to that.
One possible solution (although it is uncertain that even this would work) would be for the Church of England to cease acting as an organ of the state and simply offer weddings as a private organization. That option is currently being discussed by senior Anglican officials, although it could open up a chain of unintended consequences leading to the total disestablishment of the Church of England.
Q: Why’s that?
A: Well, because offering wedding and funeral services is central to the Church of England’s existence as an established church. These functions are central to the preservation of the parish system which lies at the heart of the Church’s integration in society. If the Church of England began offering weddings as merely a private organization, it would de facto be a private organization and it would become increasingly difficult to justify subsidizing the church with tax payer’s money. Also, people could begin to ask why the Queen is head of this private organization and not other private organizations.
Q: Christian Voice has written before about the importance of common law. Do the proposals to change the definition of ‘marriage’ relate to that at all?
A: That’s a great question, but before I plunge into the answer, it may be helpful to briefly explain what we mean by common law. I always go back to the legal scholar William Blackstone (1723–1780) who, is magisterial Commentaries on the Laws of England, talked about common law as being the lex non scripta (unwritten laws). The reason he called them unwritten is because “their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” These traditions and precedents that make up common law form the backbone of the British constitution and are vital for the preservation of our nation’s legal integrity.
Now to call these laws “unwritten” may be misleading for, as Blackstone reminds his readers, such laws are indeed recorded “in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession…” What the term ‘unwritten’ connotes (and this is central) is that the binding authority of common law does not depend specifically on Parliamentary statutes, even though much of it has been codified by Parliament or by the courts. Rather, the binding authority of common law derives from the authoritative role played by precedent within the British constitution.
The common law is not something that can be dismissed at a whim for the sake of political expediency. As Blackstone again pointed out, “precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration.”
It seems strange even having to make such an obvious point, but the traditional understanding of marriage is a foundational pillar of common law. The common law understanding of marriage, assumed by the Book of Common Prayer, was expressed in the Church of England’s recent submission when it asserted that marriage is “essentially the voluntary union for life of one man with one woman, to the exclusion of all others.”
This understanding of marriage goes beyond merely being part of the common law; in an important sense, marriage is the very foundation of common law. This is because marriage keeps alive the insolvable between family, church and state. Once marriage goes, all of our common law becomes potentially compromised. This is precisely why the Church of England has argued that our entire system could begin unravelling if marriage is redefined. It could precipitate a chain of unintended consequences culminating in the removal of the Queen as the head of the Church of England.