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