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Clergy will bless same-sex couples, not their marriage, say church lawyers

30 January 2023


CIVIL marriage is not the same as holy matrimony, a note from the Church of England’s legal office has stated.

The note, circulated to General Synod members on Wednesday morning of last week, says that: “Because what is capable of constituting a marriage for the purposes of ecclesiastical law (the union of one man and one woman) now differs fundamentally from what is capable of constituting a marriage for the purposes of the general law (the union of two persons without regard to their sex), there is a good case for saying that the institution of Holy Matrimony and the institution of civil marriage are now distinct.”

The note goes on to say that the “two definitions [of marriage] are mutually exclusive”, and therefore “the concept of civil marriage is now of a different nature from the concept of marriage set out in Canon B30.”

Next week, the General Synod will debate the proposal by the House and College of Bishops to enable clergy to use draft prayers contained in Prayers of Love and Faith to bless same-sex couples (News, 19 January).

The reason for the note has not been disclosed, but it appears to have the intention of making clear that the way in which the prayers are used should not blur the distinction between a prior civil marriage and a wedding in church.

The note says that it “would not be lawful for a minister to use a form of service which either explicitly or implicitly treated or recognised the civil marriage of two persons of the same sex as corresponding to Holy Matrimony”.

Another possible intention is to head off conservative criticism of such blessings by maintaining that the doctrine of marriage is unaltered by the Bishops’ proposals. “The Legal Office . . . considers that none of the text contained in the draft Prayers of Love and Faith treats the civil marriage of two persons of the same sex, either expressly or impliedly, as amounting to Holy Matrimony. The Prayers are careful to avoid any such implication. Moreover, the Prayers are framed so that they do not bless civil marriages (or civil partnerships); any blessing is of the couple and the good in their relationship, not of the civil status they may have acquired.”

Although there have been suggestions in conservative circles that Evangelical bishops should ban the use of these prayers of blessing in their dioceses, it is understood that the way the prayers are framed means that the use of them can be decided by individual ministers without reference to their bishop.

The note says that the legal basis for the draft prayers is understood to be found in Canon B5, which gives ministers broad discretion to “use forms of service considered suitable by him”, providing that they do not contravene canon law (News, 20 January) — and it has determined that these do not.

Should the Synod wish to amend canon law on holy matrimony (Canon B30), it would require a simple majority, the Second Church Estates Commissioner, Andrew Selous MP, said on Thursday of last week.

After answering MPs questions about the issue on Tuesday of last week (News, 25 January), Mr Selous returned to the subject on Thursday and told the House of Commons that he had been asked by the Church’s legal office to make a “small clarification” about the process by which the marriage canons could be amended.

“A simple majority in each of the three Houses of the General Synod could suffice to pass a measure and amending canon to change the definition of marriage in ecclesiastical law,” he said. “But circumstances could also arise in which two-thirds majorities in the House of Bishops and the House of Clergy would be needed, and, as with all authorised forms of service, a two-thirds majority in each House would be required for the approval of the Synod as a form of service for the marriage of a same-sex couple,” he said.

The Church Times understands that General Synod could pass legislation to amend Canon B30 with just a simple majority in each of the three Houses, but that under Article 7 of the Constitution of the General Synod, the House of Laity or the Convocations could subsequently decline to approve the legislation. In that event, a two-thirds majority would be required in the House of Bishops and the House of Clergy in order for the legislation to pass.

On Monday of last week, the Archbishop of Canterbury spoke to LGBTQ+ protesters outside Lambeth Palace, telling them “I don’t have the votes to go further” than offering blessings (News, 27 January).

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