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Breaking the rules on gay marriage

28 February 2014

The position of clerics who disobey bishops is still unclear, says Will Adam


One approach: figurines at a gay-marriage fair

One approach: figurines at a gay-marriage fair

PICTURE the scene: the Bishop's post is being opened, and among the invitations, job applications, and clerical outfitters' catalogues are three troubling pieces of correspondence.

The first is from the Diocesan Director of Ordinands, informing the Bishop that an ordinand in training, who is in the process of looking for a title post in the diocese, has entered into a same-sex marriage.

The second is a letter of complaint from a group of parishioners that the Vicar of X has just used the form of service for prayer and dedication after a civil marriage from Common Worship: Pastoral Services to bless a same-sex marriage in church.

The third is from the churchwarden of Y to say that the Rector has just come back from holiday with the news that the trip was a honeymoon, and a new (same-sex) spouse has moved into the Rectory.

What is the Bishop to do? So much of the comment aired since the publication of the House of Bishops' statement on same-sex marriage ( News, 21 February) has revolved around how a bishop would enforce the policy set down in that statement. The reality, however, is probably that it will be others who will make complaints, seeking to force bishops to act.

This is not new. This bishop's predecessors in the 1860s and 1870s would have faced multiple complaints and probably lawsuits over ceremonial and liturgical practices, and powerful individuals and pressure groups frequently and regularly promoting and funding legal challenges.

NONE of these scenarios is straightforward. In the first, it may be noted that a recommendation for training for ministry does not bring with it a guarantee of a title post or of ordination.

The Church of England, like other religious organisations, is exempt from those parts of equality legislation that could make refusing to place or ordain this ordinand open to challenge as unlawful discrimination, but the question is yet to be tested in court.

In the second scenario, the Bishops have stated that "services of blessing should not be provided" after same-sex marriage, continuing the policy from 2005, relating to civil partnerships. It is arguable that the use of an order for prayer and dedication after a civil marriage after same-sex marriage falls within the definition of services of blessing prohibited in the Bishops' statement.

This question falls outside the scope of the Clergy Discipline Measure 2003, as it concerns things doctrinal or liturgical. The relevant statute remains the Ecclesiastical Jurisdiction Measure 1963.

Six people on the electoral roll of the parish concerned can trigger a complaint under this Measure, and the bishop must first give both accused and complainant the chance of a private interview, and then he may dismiss the complaint, or submit it first to a committee of inquiry, who may then dismiss the complaint, or submit it for trial in the Court of Ecclesiastical Causes Reserved. There is a great deal at stake in this process, and legal, financial, and pastoral costs lurk around every corner.

The third scenario also presents difficult legal and pastoral issues. A churchwarden may make a complaint under the Clergy Discipline Measure (CDM). The statement of the House of Bishops indicates that to enter a same-sex marriage would not be "appropriate conduct" for an ordained minister. To do so could, on one hand, be seen as potentially amounting to misconduct, for which proceedings may be started under the CDM.

It could, however, be argued in the face of such proceedings that it is a matter involving ritual, doctrine, or ceremonial, and, as such, not justiciable under the CDM, but rather under the 1963 Measure, as above.

MUCH has been made in recent comments of whether clergy acting contrary to the House of Bishops' statement would be, by that action, contravening their obligations under the Oath of Canonical Obedience by not obeying their bishop in "all things lawful and honest". Unfortunately for everyone, there is no clear definition of the meaning of this obligation, nor of the scope of what is lawful and honest.

There are actions that, while lawful, are not appropriate conduct for ordained ministers. Ultimately, it will be for the relevant court or tribunal to decide all these matters, if and when a test case is brought.

In the late 19th century, court cases were frequent, but did not bring much in the way of peace, happiness, or resolution. What is undisputed today is that anyone who is involved in scenarios such as those outlined above, be he or she a bishop, cleric, or lay person, needs to seek reliable professional legal advice, the like of which is not available on social media and blogs, or in newspaper articles.

There is a great deal at stake: mission and pastoral care in parishes, the ministries and livelihoods of the clergy, the mission and peace of the diocese, finances, and, in the words of Section 42(7)(a) of the 1963 Measure, "the interests of the Church of England". A test case may well come. Until then, we are all sailing in uncharted waters.

The Revd Dr Will Adam is Vicar of St Paul's, Winchmore Hill, in the diocese of London, and the editor of the Ecclesiastical Law Journal.

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