Legal and ecclesiological issues concerning same-sex marriages

Earlier this year, the Scottish government seemingly kicked its proposals for extending marriage to gay and lesbian couples into the long grass, asserting that, whilst remaining committed to the principle, it could not act further without legislative changes down south. Today, the Westminster government unveiled its proposals to accomplish the same end in England and Wales. The Scottish government’s decision looks wiser than ever.

I am no lawyer, but it seems clear to me that in legislating there are two questions to be addressed: what is the desired end? and, can it be at least approximately achieved by legislation? It seems to me that the Westminster government has stumbled badly on both counts.

On the first, what was the government trying to achieve? If the answer was equal status between gay/lesbian couples and heterosexual couples, then the proposals fail pretty dismally. First, the reasons given for retaining civil partnerships for GL couples, but not extending them to heterosexual couples, were at the very best specious; it was difficult not to conclude that the government had simply not considered the question, and had no good answer to it. But this leaves a deeply asymmetrical situation: gay/lesbian couples can opt for marriage or civil partnership; straight couples have only marriage. This is not ‘equality’. (It might be right – I can think of at least one plausible line of argument to justify this position, an argument based on queer theory that I have some time for – but the government’s rhetoric was not there. They said they were delivering equality; they were not.)

This aside, by ducking some of the hard legislative issues, the ‘marriage’ they delivered was not equal. A same-sex marriage, under the proposals, cannot be dissolved on grounds of non-consummation; an opposite-sex marriage can. The point here is not the frequency of appeals to non-consummation (they are extremely rare, but the possibility is important for Roman Catholic practice), but the fact that, in law, ‘gay’ marriages and ‘straight’ marriages will remain different things under these proposals – just as civil partnerships and marriages were different things, conferring the same rights, before.

Then we get to the attempts to negotiate the consciences of mosques, synagogues, gurdwaras, and churches. We only have the minister’s statement, not the draft bill, but if I understand what she said rightly the situation is this:

Non-religious celebrants will not be allowed to distinguish between same-sex and opposite-sex marriage on grounds of conscience; National religions, except the Church of England and the Church of Wales, will be able to distinguish if they so wish; The Church of England and the Church of Wales will be required in law to so distinguish; Ministers of national religious bodies that choose to distinguish have no right of dissent; Ministers of national religious bodies that choose not to distinguish have a right of dissent; Ministers of the Church of England and the Church of Wales have no right of dissent; Congregations are required to follow the decisions of their ministers on this question.

It would be unkind to Fido’s dining habits to call this a dog’s breakfast…

To be as generous as possible, I reconstruct as follows: the government has assumed (wrongly) that no religious body is currently in favour of same-sex marriage; it has assumed (wrongly) that local ministers within religious bodies are presently convinced of the stance of the national body; it has assumed (wrongly) that in every religious body national bodies are able to over-rule local ministerial/congregational decisions; and it has assumed (wrongly) that local congregations inevitably acquiesce to the opinions of their minister (& that there is only one local minister, or that the local ministers share an opinion…). On the basis of these several assumptions, the government has introduced ‘safeguards’ for the ‘status quo’…

…unfortunately for the government, the status they are safeguarding is very far from the status quo. The reality on each of these points is far from what is assumed, and so the provisions in the bill, at best, protect the conscientious rights of imaginary people in some fantasy world. As it is, the rights of Anglican priests who want to celebrate same-sex marriages (I can give you a personal introduction to many…) are excluded; congregations who have a residing minister who believes differently from them are unheard; the Baptist/Congregationalist denominations who locate authority in the local congregation, not in national body or local ministry, are unable to follow their religious beliefs, and, basically, almost nobody is presently happy.

Was the desired end this bizarre mishmash of exclusions, compromises, and privileges? I assume not, and so must conclude that the draft bill proposed by the Westminster government is failing to achieve its intended end.

The second question concerns legislative competence: does the proposed draft legislation achieve the desired ends? Unfortunately, in this case, even if the ends are the complex arrangements outlined above, the answer has to be no. Here I refer readers to Frank Cranmer’s excellent Law and Religion UK blog; in a post today, Frank has examined the proposals outlined from a strictly legal perspective. He concludes – rightly in my, admittedly amateur judgement – that there are several serious problems.

The first is that UK human rights law is governed by the European Convention on Human Rights, and so by a body of case law built up by the European Court concerning the extent of various rights. Frank writes:

But the issue before the Court in the case of a challenge, for example, to the blanket ban clergy of the C of E conducting same-sex marriages or to the refusal of a Church to allow one of its ministers to do so would be this: whether, having conceded the principle of same-sex religious marriage as an institution, the Government could then permit individual religious organisations to refuse to perform such marriages or, perhaps more pointedly, whether an individual cleric could be prevented by his superiors from doing so. In the latter case, what about that person’s Article 9 rights?

These seem to me serious questions; the Secretary of State’s promise to amend the Human Rights Act ignores the fact that that Act is governed by the European Convention, and that amendments to that Act can be declared unlawful by the European Court. The present situation in the UK is stable under European law: the provision of civil partnerships that offer the same legal benefits as marriage is explicitly (under case law) sufficient to prevent challenge on grounds of discrimination over sexuality, but the legal distinction between civil partnerships and marriage (under case law) allows the restriction of marriage to opposite sex couples. This has all been tested in European law. The government’s proposals would destroy the current stable synthesis; it is not predictable in advance what a new synthesis acceptable to the European Court would look like.

Again, the question of broadly congregationalist traditions is all-but ignored by the present government proposal (OK, we’re used to it, but…). Frank Cranmer comments:

Churches such as the Congregationalists and the Baptists whose ecclesiology is firmly rooted in the principle that “The Church” subsists in the local gathered congregation might find themselves in the unenviable position of having a majority of local congregations that would not dream of conducting a same-sex marriage and a few who very much wanted to do so. So what then? And what authority does “the presiding minister” have anyway? He or she is often regarded in some denominations as simply one elder among many.

These questions may not loom large in the Secretary of State’s mind, but – as a Baptist – they do in mine. By not understanding our religious traditions, the government’s proposals fail to make space for them.

Behind all this, however, there is a much bigger question: the government is legislating to protect certain forms of religious liberty that it regards as acceptable and important; in doing so, it is asserting that it has control over the patterns of worship (a marriage is an act of worship) of the religious bodies of the country. This assumption is unacceptable. My mother in the faith Elizabeth Gaunt was burnt at the stake, denied the customary ‘kindness’ of strangling beforehand, for no other crime than seeking to witness to a way of being Christian that was not the approved government/Anglican way; no-one is threatening martyrdom today, certainly; but this proposed bill seems to assume and assert that the government has a right to decide how people shall worship. For that reason alone, regardless of any beliefs concerning equal marriage, the bill should be vehemently opposed. If equal marriage should be introduced, it should be in a different way to this.

In the seventeenth century we Baptists fought and suffered and sometimes died for religious liberty; to hear a government minister stand up in the House of Commons and announce that she has taken it upon herself to define the sorts of liberty, and the extent of liberty, that we may enjoy – and to pretend that this is done in the name of religious liberty – is, I am afraid, just offensive.