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News > UK >

Same-sex-marriage Bill will lock C of E's right to abstain

Ed Thornton

by Ed Thornton

Posted: 14 Dec 2012 @ 12:55

PA

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"Quadruple-locked": Maria Miller announces the Government's proposals in the House of Commons, on Tuesday

Credit: PA

"Quadruple-locked": Maria Miller announces the Government's proposals in the House of Commons, on Tuesday

THE protection for the Church of England to be contained within the Government's same-sex-marriage legislation was a surprise to church representatives, it emerged this week.

On Tuesday, the Minister for Women and Equalities, Maria Miller, announced that the Bill would include a "quadruple lock" of measures that would "protect religious freedom". These would specify that it would be illegal for any Church of England minister to conduct a same-sex marriage.

But at a meeting with Parliamentarians on Thursday, the Bishop of Leicester, the Rt Revd Tim Stevens, said that this level of protection had not been mentioned in meetings with the Government. He regretted that no prior consulation had been sought.

Mrs Miller said that the legal locks, "which will be on the face of any primary legislation, are:

• no religious organisation, or individual minister, could be compelled to marry same-sex couples (or to permit this to happen on their premises);

• it will be unlawful for religious organisations, or their ministers, to marry same-sex couples unless the organisation's governing body has expressly opted in to do so (and that would mean the religious organisation itself opting in, the presiding minister having consented and the premises in which the marriage is to be conducted having been registered);

• the Equality Act 2010 would be amended to ensure that no discrimination claim could be brought against religious organisations or individual minister for refusing to marry a same-sex couple (or allowing their premises to be used for this purpose); and

• the Bill will explicitly state that it would be illegal for the Church of England and the Church in Wales to marry same-sex couples, or to opt in to do so. Canon law - which bans the marriage of same-sex couples - will continue to apply. That means that it would require a change in both primary and canon law before the Church of England and Church in Wales would be able to opt in to conduct same-sex marriages."

The Bill will allow same-sex couples to get married in civil ceremonies, and for religious organisations - apart from the Church of England and the Church in Wales - to "opt in" and conduct marriage ceremonies for same-sex couples.

Mrs Miller said: "I feel strongly that, if a couple wish to show their love and commitment to each other, the state should not stand in their way. These changes will strengthen marriage in our society. . .

"I am absolutely clear that no religious organisation will ever be forced to conduct marriages for same-sex couples, and I would not bring in a Bill which allowed that. European law already puts religious freedom beyond doubt, and we will go even further by bringing in an additional 'quadruple legal lock'."

In the House of Commons on Tuesday, Mrs Miller said: "Because the Church of England and [Church in] Wales have explicitly stated that they do not wish to conduct same-sex marriage, the legislation will explicitly state that it will be illegal for the churches of England and Wales to marry same-sex couples. . . this provision recognises and protects the unique and established nature of these Churches." Should those Churches choose to opt in, ministers would still be able to refuse to officiate.

Question of the Week: Is the protection too heavy-handed?

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The legal position

IF, once the same-sex marriage legislation is passed, a parish priest decides to break the law and marry a same-sex couple, it will be to no avail: the marriage will not be valid.

This is because the legislation will not alter the Church of England's canons, one of which - Canon B30, paragraph 1 - states that marriage is "of one man with one woman". 

The Government's legislation does not, therefore, make it illegal for C of E ministers to marry same-sex couples, as some reports have suggested: it merely reinforces what is already the case in canon law.

Since canon law is also part of public law, the Government has had to make it specific that same-sex marriage legislation does not apply to Church of England marriage rites. 

The Government is not attempting to alter canon law for two reasons: first, it is responding to requests from Church House officials that it permit the Church to maintain its existing position on marriage; second, it is preserving a long-standing tradition that Parliament does not legislate for the Church of England in matters of doctrine and practice.

It would be up to the General Synod, therefore, to pass legislation changing the C of E's doctrine and practice of marriage. A legislative package would have to include an Amending Canon redefining the nature of marriage, and the passing of a Measure (the General Synod's equivalent of an Act of Parliament) which altered both statute law concerning C of E marriage rites, and the marriage service in the Book of Common Prayer.  

If passed by the Synod, the Measure would require parliamentary and, ultimately, royal assent.


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