Same-sex civil partnerships & marriages in the UK
2012-JUN: Rejection of the government's
consultation by the Church of England (Cont'd)
This is a continuation from an earlier essay.
In this web site, the term "SSM" means "same-sex marriage.
We prefer this term over "gay marriage" because of inclusiveness and accuracy.
marriages involve one or two persons with a bisexual orientation.
2012-JUN-12: The Church of England attacks the government's plan to allow marriage equality (Cont'd):
The Church of England's 13 page response to the public consultation by the Government Equalities Office begins with the following summary:
"The Church of England cannot support the proposal to enable 'all couples, regardless of their gender, to have a civil marriage ceremony.'
Such a move would alter the intrinsic nature of marriage as the union of a man and a woman, as enshrined in human institutions throughout history. Marriage benefits society in many ways, not only by promoting mutuality and fidelity, but also by acknowledging an underlying biological complementarity which, for many, includes the possibility of procreation.
We have supported various legal changes in recent years to remove unjustified discrimination and create greater legal rights for same sex couples and we welcome that fact that previous legal and material inequities between heterosexual and same-sex partnerships have now been satisfactorily addressed. To change the nature of marriage for everyone will be divisive and deliver no obvious legal gains given the rights already conferred by civil partnerships. We also believe that imposing for essentially ideological reasons a new meaning on a term as familiar and fundamental as marriage would be deeply unwise.
The consultation paper wrongly implies that there are two categories of marriage, 'civil and 'religious.' This is to mistake the wedding ceremony for the institution of marriage. The assertion that 'religious marriage' will be unaffected by the proposals is therefore untrue, since fundamentally changing the state‘s understanding of marriage means that the nature of marriages solemnized in churches and other places of worship would also be changed.
To remove the concept of gender from marriage while leaving it in place for civil partnerships is unlikely to prove legally sustainable. It is unlikely to prove politically sustainable to prevent same sex weddings in places of worship given that civil partnerships can already be registered there where the relevant religious authority consents. And there have to be serious doubts whether the proffered legal protection for churches and faiths from discrimination claims would prove durable. For each of these reasons we believe, therefore, this consultation exercise to be flawed, conceptually and legally." 1
Persons who believe in marriage equality might raise the following objections to the Church of England's (CoE) response:
The CoE's point greatly weakens their case. Since they have no objection to allowing some non-procreative opposite-sex couples to marry, one might ask why should non-procreative same sex couples be prohibited from marrying? It would seem reasonable that if procreation is so important, that the government should ban all infertile couples from marriage. But no political jurisdictions of which we are aware requires opposite-sex couples to prove their fertility and their intent to procreate prior to marriage.
- It may be worth noting that the concept of a woman and man deciding to marry has not been "enshrined in human institutions throughout history" -- at least it has not always been the sole marriage type. The definition of marriage has changed many times over past history, reflecting the fact that marriage itself has evolved:
- Polygamy was common among the ancient Hebrews, as reported in the Hebrew Scriptures (Old Testament.) Solomon himself led a family headed by about 1,000 adults: himself, about 700 wives and 300 concubines.
- In some cultures of the world, same-sex marriages were and remain legal.
- In some states in the U.S., for example, marriage laws did not not allow African American opposite-sex couples to marry prior to the conclusion of the Civil war.
- Interracial couples were not allowed to marry in over a dozen contiguous U.S. states in the American southeast until the famous "Loving v. Virginia" ruling by the U.S. Supreme Court in 1967.
- The CoE's statement discusses the removal of "unjustified discrimination" against same-sex couples. It may be worth noting that this would seem to allow the continuation of what the church considers justified discrimination. The main discrimination against same-sex couples under the current law is that they cannot have their relationships recognized as marriages. This is to many the most important right that they have ever sought.
- Without question, the CoE is correct in asserting that to change the definition of marriage would be divisive, at least to the small and gradually shrinking percentage of adults who oppose SSM. But to not change the definition to include all loving, committed couples would be divisive to the large and growing majority of adults. There is no room for compromise in a way that makes both groups happy.
- The church expressed concern whether they would be allowed to opt out of marrying same-sex couples as the proposed legislation provides for. They suggest that the law could not withstand a challenge in the European Court of Human Rights.
However, Ben Summerskill who heads Stonewall -- the main secular group promoting marriage equality in the UK ridiculed that suggestion. He accused the CoE of a:
"... masterclass in melodramatic scaremongering that somehow this is the biggest upheaval since the sacking of monasteries." 2
He also said that:
"... many bishops in the Church of England today will be rather pleased because once again they are not talking about global poverty or the HIV pandemic, they are talking about the subject that obsesses them, and that is sex." 3
Adam Wagner of the UK Human Rights blog, analyzed the possibility of a ruling by the European Court based on the European Convention on Human Rights that would force CoE priests and other clergypersons to marry same-sex couples. He concluded that:
"... it is clear from the rest of the document that the church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would 'probably' succeed. But even the church's own response, reading a little further, does not go this far." 4
Wagner cites some reasons why any challenge would probably fail:
- In its 2010 ruling in Schalk and Kopv. v. Austria, the European Court of Human Rights determined that it would not force states to allow same-sex couples to marry. The ruling stated, in part, "the question whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state."
- He concludes that:
"I would put the prospects of success at no more (but also no less) than 'reasonable'. It may be that once a state decides to implement gay marriage, the court will be less cautious in ruling on how exactly the rules are implemented. But, a claimant would still face very significant hurdles. It is clear from Schalk is that the ECtHR is still a long way from seeking to dictate how states should or should not legislate for gay marriage. ..."
"... my expectation is that, as was the case with civil partnerships, once the equal marriage proposals are implemented and the sky does not fall in, the ban on marriages taking place on religious premises will be lifted in due course too. Given the melodrama which surrounded the introduction of civil partnerships, and the non-catastrophe which followed, I tend to agree with this excellent New Yorker editorial:
"So the church may be right about a potential human rights challenge to the changes as proposed in the equal marriage consultation. But it has inflated the chances of the challenge succeeding. More importantly, even if such a challenge was successful, it is inconceivable that a court would force any religious institution to perform a gay marriage; the most that it would do is rule that religious organizations should be given the choice. This is hardly earth shattering. The church's concerns may be real but they should not be a bar to the proposals becoming a reality." 4
Discussion on this topic continues in the next essay
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "A Response to the Government Equalities Office Consultation --'Equal Civil Marriage' -- from the Church of England," 2012-JUN-12, at: http://www.churchofengland.org This is a PDF file.
- "Church of England warning on gay marriage," BBC News, UK, 2012-JUN-12, at: http://www.bbc.co.uk/
- Robert Barr, "Church Of England Objects To Gay Marriage Plan," Huffington Post, 2012-JUN-12, at: http://www.huffingtonpost.com/
- Adam Wagner, "Gay marriage: the Church of England's argument dissected," The Guardian (UK), 2012-JUN-12, at: http://www.guardian.co.uk/
Copyright © 2011 by Ontario Consultants on Religious
Originally written: 2012-JUN-13
Latest update: 2012-JUN-13
Author: B.A. Robinson