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Jean-Yves Gilg

Editor, Solicitors Journal

One step forward, two steps back

One step forward, two steps back


The government’s decision to make it illegal for the Church of England to conduct ?same-sex marriages leaves Anya Palmer questioning its position in society

The government has confirmed it will shortly bring forward legislation to end sex discrimination in marriage. If that passes on a free vote, it will no longer be the law that I can only marry a man. For this much I am grateful. I am confident the bill will pass on a free vote, and I look forward to no longer being a second class citizen in this respect.

I will be exercising my newfound right by choosing not to get married (I may even throw a party to celebrate that I can finally not get married from a position of choice) but equally I am delighted that those who do wish to marry will be able to do so.

I am surprised however that a government that introduces this measure in the name of equality still refuses to either open up civil partnership to heterosexual couples, or end that institution. Which part of the word “equality” do they not understand? Have they not taken any legal advice? Surely this discrimination will not survive challenge in the European Court of Human Rights.

The government has rightly dropped its original proposal to make it impossible for any church to marry same-sex couples even if they want to. The Quakers, Unitarians and any other church or religion that wants to marry same-sex couples will now be free to do so by opting in.

Explicitly excluded

Any other church, that is, apart from the Church of England and the Church of Wales. In respect of those two, the government proposes an additional “safeguard” from the likes of me: they will not be “given” an opt-in. As minister Maria Miller explained: “Because the Churches of England and Wales have explicitly stated that they do not wish to conduct same-sex marriage, the legislation will explicitly state that it would be illegal for the Churches of England and Wales to marry same-sex couples... Therefore, even if those institutions wanted to conduct same-sex marriage, it would require a change to primary legislation at a later date...”

Really? The Church of England decided recently that it does not want to have women bishops. Hopefully one day it will change its mind. Will the government bring forward legislation to put an additional barrier in the way of women bishops by making it illegal for the Church of England to have them? No? I thought not. So why make it impossible for the Church of England to conduct same-sex marriages without further primary legislation?

The government response to the consultation explains that this is due to “the unique position of the Church of England as the Established Church... The Church of England pointed out in its response that by law ‘Canons... do not have effect if they are contrary to the customs, laws or statutes of the realm.’”

But how is that a problem? If the proposed bill passes, the law of the realm will simply be that same-sex couples can only marry in a church that agrees to marry them. No obligation there.

The response document rightly notes that “Parliament is sovereign and can enact to take account of potential conflicts with Canon law.” It gives the example that “although legislation allows people who are divorced to marry again, the Church and individual ministers... have been relieved of the obligation to marry such people.” The reference here is to section 8(2)(a) Matrimonial Causes Act 1965, which relieves a priest of the duty to marry those otherwise entitled to be married in his (or her) church, if one or both parties has been divorced and their partner is still living.

Spot the difference anyone? The Church is not obliged to marry divorced people. The Church will not be allowed to marry same-sex couples.

It has never been thought necessary, not since the Matrimonial Causes Act 1857 which allowed ordinary people to divorce, for parliament to provide that it is illegal for the Church of England to marry a person who is divorced. So why do it for gay people? Sadly it seems the answer is “because that’s what the Church wants”.

Same for everyone

The Archbishop of Wales has criticised this proposal as “a step too far”, but the Church of England has put out a press release simultaneously denying there is any additional barrier (plainly there is) and yet approving of the fact that parliament is not giving the Church “an opt-in ... that it has not sought”.

So if the Muslim Council of Britain decide they would rather not have an opt-in, they don’t get one either?

Surely the law should be the same for everyone. The opt-in should be available to all churches and all religions regardless of whether they seek one now, in the hope that at some point they will no longer feel the need to exclude gay people.

I see no reason in law why the Church of England should be any different – least of all its status as the Established Church. The more the Church engages in special pleading of this kind, the more the rest of us will question whether we need an Established Church in the first place.